Example 1

A café advertises for an experienced barista. After an interview, the owner asks the applicant to stay back for about an hour so they can test their coffee making skills. The owner wants to make sure the applicant knows the difference between a cappuccino and a soy latte!

The unpaid trial is no more than necessary to test the quality of the applicant's skills, and legitimately forms part of the recruitment process in this case.

Example 2

Jane saw an advertisement in the newspaper from a local restaurant seeking a full-time kitchen hand. When she applied for the job, Jane was informed that she needed to work a two week unpaid trial, after which the employer would make a decision about whether she was suitable for the role. Keen for the job, Jane agreed.

After the trial, the employer told Jane that she was not suitable for the role and she was not paid for any of the hours she worked.

Jane should have been paid for all hours worked because she was performing productive work for the entire 'trial'.

Example 3

John, a restaurant owner, was told by his friend that he could improve the profitability of his business by supplementing his regular staff on the busy weekend shifts with unpaid workers 'being trialled'. John's friend promoted this scheme as a 'fountain of free labour' because there would never be a genuine intention to offer ongoing work to the people being 'trialled'.

Acting on the advice of his friend, John instructed the manager of his restaurant to start ‘churning and burning’ through resumes left with the business by job seekers - offering them unpaid weekend trial shifts. John also instructed the manager to not offer the job seekers more than one unpaid trial shift so as to make sure it looked like the 'trials' were genuine.

Schemes designed to disguise employment relationships are illegal. In this example, John and his business could face significant penalties for breaching workplace laws, in addition to having to back-pay the workers for the time they worked.

Example 4

Kate responded to an advertisement from a motel seeking an apprentice cook. When she applied for the job, Kate was told that she needed to do an unpaid trial period of one or two days, during which the employer would assess her suitability for the role. Kate accepted the offer as she was keen to secure the apprenticeship.

Kate's duties included assisting cooks and chefs prepare and store food, washing dishes and cleaning work areas. At the end of each shift, she was told by the restaurant manager that she needed to come back the next day because the boss wasn't available to make a decision. Soon Kate had worked more than a week without being paid.

The unpaid trial was unlawful, regardless of whether she secured the apprenticeship. She was undertaking the work of paid employees and the business received a significant benefit from her labour. Kate should have been paid for the duration of her trial.