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Unpaid Work in Australia – When is a Trial Shift legal?

Unpaid Work in Australia – When is a Trial Shift legal?

Understanding where and when it is legal to not be paid.

14th December 2016

When applying for a job, you may be asked to come in for a trial shift for the employer to assess how competent you are in the job. This is completely legal, however, some employers may exploit the idea of an unpaid trial. Here is everything you need to know about when an unpaid work trial is deemed illegal. Lawpath can clarify your rights and responsibilities as an employer by connecting you with an employment lawyer.

When is a trial shift legal?

A trial shift is lawful when:

  • It only demonstrates the person’s skills, which are directly relevant to the job that is being applied for;
  • The trial shift is only allowed to last as long as needed to demonstrate the necessary skills for the vacant job. The trial shift cannot exceed one shift; and
  • The person undertaking the trial shift must be under direct supervision the entire time by a current manager or employee.

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.

An example of lawful unpaid trial work

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 for 1 hour. She goes to the trial shift at 9 am, and is shown by one of the current receptionists 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 the entire time and is teaching her every new skill and making an assessment. She is thanked for her time and finishes at 10am. In two weeks, the office notifies her that she does not have the job.

An example of unlawful unpaid trial work

Eve has applied to work at a cafe serving coffee and smoothies. She is called by the manager of the cafe who has told her that they want her 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. Eve does as she is told, hoping to make a good impression on the manager, who does her own work whilst Eve is working. She finishes her trial shift at 5 pm and has worked for a total of 8 hours and has only been monitored/trained for 1. She is thanked and leaves. 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.

Final Thoughts

If you worry that you have been taken advantage of by a company not paying you for a trial shift when they should have, you can contact LawPath. As an employer, you have a responsibility to comply with Australia’s employment laws, and therefore engaging with an employment lawyer is a crucial element of ensuring the legality of all employment activity.

Want to learn more? Contact a LawPath consultant on 1800LAWPATH to learn more about your rights and responsibilities, obtain a fixed-fee quote from our network of 600+ expert lawyers and have your legal questions answered.

Oscar Abrahams

Oscar is a Paralegal, working in our content team, which aims to provide free legal guides to facilitate public access to legal resources.