An unpaid trial shift: demonstration or work that should be paid?

What counts as a lawful unpaid trial?

Under the Fair Work system, an unpaid trial is lawful only if it is a genuine demonstration of skills needed for a vacant job, the person is directly supervised, and the trial lasts no longer than reasonably necessary. The Fair Work Ombudsman (FWO) notes that the necessary time can range from about an hour to one shift, depending on the nature and complexity of the work. A trial that goes beyond that, involves more than a demonstration, or lacks direct supervision is likely to be unlawful, and any extra time must be paid at the appropriate minimum rate.

There is no automatic rule that one shift is always free. The key question is whether the trial was truly a demonstration or whether you were actually doing productive work.

Before the trial: ask the right questions

Before you agree to an unpaid trial, confirm in writing the vacant role, the specific skill you will demonstrate, who will supervise you, the expected duration, and whether you will be asked to do any productive work. Ask how any extra time will be handled and who decides when the demonstration ends. Keep the invitation and any related messages.

Signing a form that says “unpaid trial” does not automatically make the arrangement lawful. The label does not decide whether you are an employee; the actual circumstances do.

During the trial: record what you did, not just the hours

Keep a simple record of when you arrived and left, who supervised you, what you demonstrated, and what ordinary work you performed. Distinguish between an observed exercise and covering for a staffing shortage. For example, if you were left alone to serve customers, that is likely productive work, not a demonstration.

Only keep records you are lawfully allowed to retain. Do not take customer information or confidential workplace material. Your goal is to document your own experience, not to copy the employer’s data.

When the trial keeps expanding

If the employer asks you to come back for more unpaid days, or to cover shifts, ask for written confirmation that you are now a paid employee and state the rate. If you have already worked, request an itemised explanation of the hours and how pay was calculated.

Before contacting the FWO, organise your facts using the starting-employment guide. You will need to explain the role, the tasks you performed, the supervision you received, and the total duration of the trial.

A hypothetical example to show the reasoning

Imagine a café advertises for a barista with at least three years’ experience. The manager asks you to work a full week, unpaid, to “see if you fit in.” During that week, you are assigned to the coffee machine during peak hours, with no one watching you, and you are expected to find cover if you cannot attend a shift.

Compare that with a different scenario: a kitchen hand is asked to spend 30 minutes, under the head chef’s direct supervision, preparing a few dishes to show basic knife skills. In the first scenario, the arrangement looks like employment, not a trial. In the second, it may be a genuine demonstration if it is necessary for the vacancy and goes no further than reasonably needed.

Which scenario matches your situation? That is the question you need to answer with your records.

If the issue is not resolved

If you believe the trial was unlawful and the employer does not pay you, you can contact the Fair Work Ombudsman. Before you do, prepare a clear summary: the date and time of the trial, the tasks you performed, the supervision (or lack of it), and any messages from the employer about the trial. Also note the applicable award or agreement, if you know it.

The FWO can advise on the correct pathway for your situation. If you need specialist help, bring the same records to a union, an industry association, or a workplace relations professional.

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