Can they make me work an unpaid trial shift?
32 quoted answers, each with its source
The short answer
An unpaid work trial is only a brief, directly supervised demonstration that a candidate has the skills for a vacant job. If a trial is not necessary to demonstrate those skills, lasts longer than is actually needed, is not directly supervised, or involves more than that demonstration, it may be unlawful, and any period beyond what is reasonably required must be paid at the appropriate minimum rate; a week-long unpaid trial to assess suitability is an employment relationship and must be paid. The Fair Work Ombudsman says a reasonable trial can range from an hour to one shift depending on the nature and complexity of the work. A person on trial who is an employee still has entitlements such as the legal minimum rate, regular pay slips, and tax deducted, and voluntary work is not unpaid trial work.
Every part of this comes from the quotes below. How we write these.
What the rules actually say29
Quoted straight from the Fair Work Ombudsman, the Fair Work Act 2009 or the applicable modern award.
The Fair Work Ombudsman defines an unpaid work trial as a demonstration by someone working under supervision to show they have the skills for the job.
1 quote from 1 source
An unpaid work trial is a demonstration by someone working under supervision to show they have the skills for the job.
An unpaid work trial may be unlawful where it…
- is not necessary to demonstrate the skills required for the job.
- has continued for longer than is actually needed.
2 quotes from 1 source
Unpaid work trials may be unlawful where:
it isn't necessary to demonstrate the skills required for the job, or has continued for longer than is actually needed
The length of time reasonably needed for an unpaid work trial…
- depends on the nature and complexity of the work.
- could range from an hour to one shift.
1 quote from 1 source
this will be dependent on the nature and complexity of the work, but could range from an hour to one shift
The Fair Work Ombudsman states that an unpaid work trial may be unlawful where the person is not under direct supervision for the trial.
2 quotes from 1 source
Unpaid work trials may be unlawful where:
the person is not under direct supervision for the trial.
The Fair Work Ombudsman states that any period beyond what is reasonably required to demonstrate the skills required for the job must be paid at the appropriate minimum rate of pay.
1 quote from 1 source
Any period beyond what is reasonably required to demonstrate the skills required for the job must be paid at the appropriate minimum rate of pay.
The Fair Work Ombudsman states that an employer wanting to further assess a candidate's suitability could…
- employ the person as a casual employee and/or for a probationary period.
- pay them accordingly for all hours worked.
1 quote from 1 source
If an employer wants to further assess a candidate's suitability, they could employ the person as a casual employee and/or for a probationary period and pay them accordingly for all hours worked.
The Fair Work Ombudsman…
- gives an example of an unpaid trial that should be paid.
- states that the candidate in the unpaid trial arrangement should be paid for all hours worked at the appropriate minimum rate of pay.
2 quotes from 1 source
At her interview, Jessica is advised that she will need to work the first week unpaid to give the café manager time to see whether or not she is suitable for the job.
The duration of the 'trial' and the requirements placed on Jessica suggest that the arrangement is an employment relationship, meaning that she should be paid for all hours worked at the appropriate minimum rate of pay.
An unpaid work trial may be unlawful where it involves more than only a demonstration of the person's skills, and where those skills are directly relevant to a vacant position.
2 quotes from 1 source
Unpaid work trials may be unlawful where:
it involves more than only a demonstration of the person’s skills, where they are directly relevant to a vacant position, or
The Fair Work Ombudsman gives as an example of a lawful unpaid trial a brief trial that was reasonable to demonstrate an applicant's skills.
1 quote from 1 source
Jack's brief trial was reasonable to demonstrate his skills and he does not need to be paid for the trial.
Fair Work Act 2009 section 15(1)(b) provides that a reference in the Act to an employee with its ordinary meaning does not include a person on a vocational placement.
5 quotes from 1 source
A reference in this Act to an employee with its ordinary meaning:
(a) includes a reference to a person who is usually such an employee; and
(b) does not include a person on a vocational placement.
15 Ordinary meanings of employee and employer (1) A reference in this Act to an employee with its ordinary meaning: (a) includes a reference to a person who is usually such an employee; and (b) does not include a person on a vocational placement. Note: Subsections 30E(1) and 30P(1) extend the
nd employer (1) A reference in this Act to an employee with its ordinary meaning: (a) includes a reference to a person who is usually such an employee; and (b) does not include a person on a vocational placement.
- Fair Work Act 2009 legislation.gov.au
Fair Work Act 2009 section 13 defines a national system employee as an individual employed by a national system employer, except on a vocational placement.
3 quotes from 1 source
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
13 Meaning of national system employee A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement. Note: Sections 30C and
ystem employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
- Fair Work Act 2009 legislation.gov.au
Fair Work Act 2009 section 15AA(1) requires whether an individual is an employee within the ordinary meaning of that expression to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.
3 quotes from 1 source
For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.
15AA Determining the ordinary meanings of employee and employer (1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is
a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.
- Fair Work Act 2009 legislation.gov.au
Fair Work Act 2009 section 44 provides that an employer must not contravene a provision of the National Employment Standards.
3 quotes from 1 source
An employer must not contravene a provision of the National Employment Standards.
This section is a civil remedy provision (see Part 4‑1).
44 Contravening the National Employment Standards An employer must not contravene a provision of the National Employment Standards.
- Fair Work Act 2009 legislation.gov.au
Fair Work Act 2009 section 293 provides that an employer must not contravene a term of a national minimum wage order.
2 quotes from 1 source
An employer must not contravene a term of a national minimum wage order.
293 Contravening a national minimum wage order An employer must not contravene a term of a national minimum wage order.
- Fair Work Act 2009 legislation.gov.au
JobWatch states that the general rule for an unpaid trial is that a person should be paid for every hour they work as an employee.
1 quote from 1 source
The general rule is that you should be paid for every hour that you work as an employee.
The unpaid trial's documented position is that JobWatch states that if a person is supervised for the whole trial and does not work longer than is reasonably necessary to show they have the required skills, the Fair Work Ombudsman will not treat this as an unlawful underpayment of wages.
1 quote from 1 source
If you are supervised for the whole trial and you do not work for longer than is reasonably necessary to show that you have the required skills, then the Fair Work Ombudsman will not treat this as an unlawful underpayment of wages.
- JobWatch states that a job applicant may choose to agree to a short unpaid trial.
- JobWatch gives one or two hours as an example of a short unpaid trial.
- JobWatch states that a job applicant may use a short unpaid trial to demonstrate to an employer that the job applicant has the necessary skills to do a particular job.
1 quote from 1 source
You may choose to agree to do a short (e.g. 1 or 2 hours) unpaid trial to demonstrate to an employer that you have the necessary skills to do a particular job.
JobWatch states that all employees are entitled to proper working conditions while on trial.
1 quote from 1 source
All employees are entitled to proper working conditions while on trial.
- JobWatch states that voluntary work is not unpaid trial work.
- JobWatch states that the reason voluntary work is not unpaid trial work is that when someone volunteers their services, the possibility of an offer of employment is usually not a consideration.
2 quotes from 1 source
Voluntary work is not unpaid trial work.
The possibility of an offer of employment is usually not a consideration.
JobWatch states that a person working an unpaid trial has the right to be paid the legal minimum rate of pay.
2 quotes from 1 source
These requirements include the right to:
be paid the legal minimum rate of pay;
According to JobWatch, a person working an unpaid trial has the right to…
- receive regular pay slips.
- have tax deducted from their wages.
1 quote from 1 source
receive regular pay slips and have tax deducted from your wages;
Measured finding1
Something someone actually measured, with the method attached.
The Fair Work Ombudsman states that the duration and requirements of the unpaid trial arrangement suggest an employment relationship.
2 quotes from 1 source
At her interview, Jessica is advised that she will need to work the first week unpaid to give the café manager time to see whether or not she is suitable for the job.
The duration of the 'trial' and the requirements placed on Jessica suggest that the arrangement is an employment relationship, meaning that she should be paid for all hours worked at the appropriate minimum rate of pay.
Practical effect2
What is observed to happen in practice, as distinct from what is documented.
The unpaid trial example is an arrangement in which a candidate was told she would need to work the first week unpaid so the manager could see whether she was suitable.
2 quotes from 1 source
At her interview, Jessica is advised that she will need to work the first week unpaid to give the café manager time to see whether or not she is suitable for the job.
The duration of the 'trial' and the requirements placed on Jessica suggest that the arrangement is an employment relationship, meaning that she should be paid for all hours worked at the appropriate minimum rate of pay.
JobWatch states that the most important thing to know about unpaid trial work is that it rarely leads to paid work.
1 quote from 1 source
The most important thing you should know about unpaid trial work – it rarely leads to paid work!