When is a Trial Shift Legal? (2019 Update)
Unpaid trials are a common way to see if a prospective employee is the right fit for the job. Find out the legal issues surrounding them here.
When applying for a job, you may be asked to come in for a trial shift. This is common where a prospective employer wants to see in practice whether you’re the right fit for the role. This is in itself, completely legal. However, some employers may exploit this. In article, we’ll outline everything you need to know about unpaid work trials.
When is a trial shift legal?
There are circumstances where unpaid work trials are legal. These include instances where:
- It demonstrates the person’s skills
- The trial only lasts as long as is necessary to demonstrate the person’s skills
- The person undertaking the trial is directly supervised
If the employer wants to further assess an applicant’s suitability and skills for the job, they must pay them at least the minimum rate of pay and employ them as a casual or employ them for a probationary period. The prospective employee must be paid for all their hours worked until the employer has decided to either hire or dismiss them. The legislation involved in this is the Fair Work Act 2009 (Cth).
Jessica has applied for a job as a receptionist at a local dental practice. The practice asks her to come in for a trial shift the next day. She goes to the trial shift, and is shown how to make calls, where the files are kept, how to order new stock, and how to make appointments. The current receptionist is monitoring her and observing her skills. The trial finishes three hours later. The office later notifies her that she did not get the job.
Illegal trial shifts
A trial shift is illegal when it has the characteristics of an employment relationship. This can include where a trial shift extends beyond one shift or where the trial does not reflect the person’s skills.
Eve has applied to work at a cafe. She is asked to come in for a trial shift the next day. She attends the trial shift the next day at 7 am. The manager spends 1 hour teaching her how to make and serve the beverages. The manager then tells Eve that she wants her to make all the beverage orders until the cafe closes at 5 pm. She finishes her trial shift at 5 pm. She has worked for a total of 8 hours and has only been monitored/trained for 1. The manager calls back later the same week to notify her that she has been unsuccessful in her application and thanks her for coming in for the trial.
Employers have a responsibility to comply with Australia’s employment laws, and this includes trial shifts. You should check whether the circumstances of your trial shift comply with the national requirements.
For employers, it is wise to pay workers for all trial shifts – even if you do not intend to hire them. If you have further questions about trial shifts, it may be worth getting in touch with an employment lawyer.
Oscar is a Paralegal, working in our content team, which aims to provide free legal guides to facilitate public access to legal resources.