Professional trial shifts: your complete guide to paid and unpaid work trials

Are you confused about when a trial shift should be paid? Whether you're a business owner looking to assess potential employees or a job seeker preparing for your first trial, understanding the rules around trial shifts is essential for staying compliant with Australian employment law.

At Business Kitz, we've helped thousands of businesses navigate the complexities of employment arrangements. Trial shifts are a common practice, particularly in hospitality and retail, but they come with specific legal requirements that must be followed to avoid costly penalties.

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What exactly is a trial shift?

A trial shift is a short-term work period that allows employers to evaluate a potential employee's skills and suitability for a role before making a formal hiring decision. It gives employers the opportunity to see how candidates perform in actual work conditions and assess their technical abilities, communication skills, and cultural fit.

According to the Fair Work Ombudsman, a trial shift can be defined as "a demonstration by someone working under supervision to show they have the skills for the job." This practical assessment helps both parties determine if there's a good match before entering a formal employment relationship.

For many businesses, particularly in the service industry, trial shifts provide valuable insights that interviews alone can't reveal. However, there's often confusion about when these shifts should be paid and when they can legally remain unpaid.

When is an unpaid trial shift legal?

The legality of unpaid trial shifts in Australia isn't as straightforward as many business owners believe. To remain compliant with employment law, an unpaid trial must meet all of the following criteria:

• It only involves demonstrating skills directly relevant to the vacant position
• It lasts only as long as necessary to demonstrate the required skills (typically 1-3 hours)
• The person is directly supervised throughout the entire trial
• The trial doesn't involve productive work that benefits the business

According to SafeWork SA, "Unpaid work trials should only occur if it's necessary to evaluate a worker's suitability for a job." Any arrangement that goes beyond this limited purpose creates an employment relationship that legally requires payment.

The Labour Hire Authority Victoria also notes that even if an unpaid trial is lawful under the Fair Work Act, other laws like workplace health and safety and discrimination laws still apply throughout the trial period.

Common signs your trial shift should be paid

If any of these factors apply to your trial shift arrangement, payment is required:

1. The trial extends beyond a few hours or involves multiple shifts
2. The person isn't supervised continuously during the trial
3. The work performed is productive and benefits the business
4. The person is required to wear a uniform or company clothing
5. The trial involves regular work duties beyond skill demonstration
6. The worker is expected to find a replacement if they can't attend

For example, asking someone to work an entire week of unpaid "trial shifts" while performing regular duties would clearly violate employment law, as would leaving a trial worker unsupervised to handle customer service duties.

Industries where trial shifts are common

Trial shifts are particularly prevalent in:

1. Hospitality: Restaurants, cafes, bars and hotels frequently use trial shifts to assess a candidate's ability to handle customer service, food preparation, or bartending under pressure. According to research from Lawpath, the hospitality industry is where unpaid trials are most commonly used.
2. Retail: Shopping centres and stores use trials to evaluate customer service skills, sales abilities, and cash handling.
3. Personal services: Hairdressers, beauty therapists, and other service providers often conduct trials to assess technical skills and client interaction.
4. Food service: Commercial kitchens use trials to test cooking skills, speed, and ability to work in fast-paced environments.

The prevalence of trials in these industries stems from the practical nature of the work, where seeing someone perform the actual job provides much more insight than an interview alone.

How to structure a lawful trial shift as an employer

If you're a business owner planning to use trial shifts in your hiring process, follow these guidelines to ensure compliance:

1. Keep it brief: Limit the trial to only what's necessary to demonstrate required skills—typically 1-3 hours maximum.
2. Provide constant supervision: Assign a manager or experienced staff member to supervise and assess the candidate throughout the entire trial.
3. Focus on relevant skills: Only request demonstrations of skills directly related to the vacant position.
4. Document the arrangement: Clearly communicate the trial's purpose, duration, and unpaid nature in writing before it begins.
5. Consider paid trials: To avoid any risk, consider paying for all trial shifts at the appropriate minimum rate, even for short assessments.

Using our document vault to store trial shift agreements ensures you have proper records of these arrangements, providing protection for your business in case of disputes.

Rights and responsibilities for job seekers

If you're asked to complete a trial shift, you should:

1. Get clarity upfront: Ask about the duration, payment arrangements, and what you'll be expected to do during the trial.
2. Know your rights: Understand that you should be paid if the trial extends beyond a brief skills demonstration or if you're left unsupervised.
3. Keep records: Document when and where you worked, what tasks you performed, and who supervised you.
4. Request feedback: After completing the trial, ask for feedback on your performance regardless of the outcome.
5. Seek advice if concerned: If you believe your trial shift violated employment laws, contact the Fair Work Ombudsman for guidance.

Converting trial shifts to formal employment

When a successful trial leads to employment, it's essential to formalise the arrangement properly. Business Kitz offers comprehensive employment agreement templates that can be customised to your specific needs.

A proper employment agreement should clearly outline:

• Position details and duties
• Hours of work and pay rates
• Probation period terms (if applicable)
• Leave entitlements
• Notice periods
• Confidentiality requirements

Remember that probationary periods—which are different from trial shifts—must be paid at the appropriate award or agreement rate, even though they also serve as an evaluation period.

Alternatives to unpaid trials

If you're concerned about the legal risks of unpaid trials, consider these alternatives:

1. Paid trial shifts - Offer payment at the appropriate minimum wage for all trial work, eliminating compliance risks.
2. Short-term casual employment - Hire candidates as casual employees for a specified period, with the option to extend if they prove suitable.
3. Probationary periods - Include a probationary period in employment contracts, allowing for termination if performance doesn't meet expectations.
4. Skills assessments - Conduct structured assessments or simulations that test specific job-related skills without creating an employment relationship.

Our document library contains templates for all these arrangements, helping you implement compliant alternatives to traditional unpaid trials.

Frequently asked questions: trial shifts

Can an employer refuse to pay me for a trial shift?

An employer can only refuse payment if the trial strictly meets all the criteria for a lawful unpaid trial: it's brief, supervised, only demonstrates relevant skills, and doesn't involve productive work benefiting the business. If these conditions aren't met, payment is legally required.

How long can a trial shift legally last?

There's no fixed time limit in legislation, but according to the Fair Work Ombudsman, a trial should only last as long as necessary to demonstrate the required skills. This typically ranges from one hour to one shift, depending on the role's complexity.

What's the difference between a trial shift and a probation period?

A trial shift is a brief pre-employment assessment of skills, while a probation period occurs after formal employment begins. Probation periods must always be paid at the appropriate rate and typically last between 3-6 months, allowing both parties to evaluate the employment relationship.

What should I do if I've completed an unpaid trial but wasn't compensated?

If you believe your trial shift should have been paid, you can contact the Fair Work Ombudsman for advice and potentially lodge a complaint. Keep records of when you worked, what tasks you performed, and any communication about the arrangement.

Are trial shifts legally required to include breaks?

Yes, if a trial shift extends beyond the typical duration requiring meal breaks under workplace laws (usually 5 hours), these breaks must be provided. All workplace health and safety regulations apply during trial shifts, even unpaid ones.

Keeping your trial shifts compliant

Understanding the rules around trial shifts is essential for maintaining workplace compliance and protecting your business reputation. Following the guidelines outlined in this post, you can effectively use trial shifts as part of your hiring process while avoiding potential penalties.

At Business Kitz, we're committed to helping Australian businesses navigate employment regulations with confidence. Our comprehensive document templates and secure storage solutions take the guesswork out of managing trial shifts and other workplace arrangements.

Sign up for a free Business Kitz account today to access our extensive library of employment templates and simplify your document management.

But if you require further assistance regarding whether the trial shift you are conducting is legal, our sister company Legal Kitz can help! They specialise in employment-related matters and offer a FREE 30-minute consultation to assist with any of your queries.