When is a Trial Shift Legal? (2021 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 you apply for a job, you may be asked to come in for a trial shift. This is common if a prospective employer wants to see in practice whether you’re the right fit for the role and assess your skills. This is in itself, completely legal. However, some employers may exploit this and it’s important to know when you have to be paid. In this article, we’ll outline everything you need to know about unpaid work trials and what your rights are.
Unpaid work trials
Unpaid work trials are common, particularly in the hospitality and retail industries. These types of trials aim to assess whether you’re a good fit for the role and is a chance to demonstrate your skills. Unpaid work trials should be a one-off. If you are asked to come in for multiple trials, then you should be compensated as this forms the basis of an employment relationship.
An employment relationship exists where a person is performing work for an employer. If an employment relationship exists, then an employee is required under law to be remunerated. In addition, the employee will be entitled to the National Employment Standards and terms of the relevant award. If unpaid work is performed and an employment relationship does not exist, then it is legal. Some common examples of this are volunteer work and vocational placements. Unpaid trial shifts also fall under this category.
Signs an employee relationship exists
- Was the purpose of the trial shift to observe the person’s skills or assist with the daily operations of the business?
- How long is the trial shift/s? Is it longer than what is needed to observe and assess the person’s skills?
- Is the work done during the trial shift tasks the business needs to be done? If the work to be done is integral for the business, it is more likely an employee relationship exists.
- Does the business gain a significant benefit from the unpaid work?
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. A worker must be paid if their duties resemble that 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. Further, if you’re undertaking a work trial unsupervised, you are entitled to receive payment.
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.
What to look out for
If you’ve been asked to come in for a trial shift, make sure you clarify the terms surrounding it. This includes:
- How long the trial shift will be for
- Whether you will be supervised
- What skills you will be expected to demonstrate
- Whether the trial is paid or unpaid
- What the next steps are
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. Unpaid work in most instances is illegal and unpaid work trials can easily become illegal if any sort of employment relationship is formed. 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.