Can I do unpaid trial shifts?

Fair Work's guidance is that a work trial can be unpaid only if it is:

• necessary to see the person's skills for the job
• limited to demonstrating skills that relate to the job
• short, lasting only as long as needed to show those skills (usually from an hour up to a shift, depending on the job)
• directly supervised the whole time by you or someone appropriate

The skills tested should be directly relevant to a genuine vacant position. For example, asking an experienced barista to stay back for about an hour after the interview and make a range of coffees while you watch is likely to be fine.

A trial is likely to be an employment relationship, and must be paid, if:

• it runs longer than needed, such as an unpaid first week
• the person does productive work your business benefits from, like serving customers, covering breaks or cleaning
• they are left to work without direct supervision
• you ask them back for extra unpaid shifts to "show commitment" or while you wait for a decision

Fair Work's own examples include a barista told to work the first week unpaid and find cover for any shift they missed, and an apprentice chef asked back day after day to prep food, wash dishes and clean. Both should have been paid.

If it's employment, they are entitled to at least the minimum award rate for every hour worked, plus other entitlements such as any casual loading and minimum shift payment under the award.

If you need more than a short skills test:

• Pay for the trial. Engage the person as a casual for the trial shift, pay at least the award rate and keep the same time and wage records you would for any employee.
• Use probation. Employ them on a probationary period and pay them for all hours worked. If it doesn't work out, notice still applies (one week under the NES for a year or less of service).
• Test skills at the interview. A short, supervised practical task can be unpaid if it meets the rules above.

Whichever you choose, tell the person up front whether the trial is paid, how long it will run and what they will be doing.

An unpaid trial that should have been paid is an underpayment. You can be required to back pay the person and face civil penalties.

From 1 January 2025, intentionally underpaying wages can also be a criminal offence (honest mistakes are excluded). The Fair Work Ombudsman won't refer a small business for criminal prosecution if it is satisfied the business complied with the Voluntary Small Business Wage Compliance Code. Workplace health and safety duties may also apply to people doing unpaid trials.

Check your award's minimum rates and casual minimum engagement before you roster a paid trial.