Life in Australia Guide

When job-hunting in Australia, you may be offered something like "a decision after a 2-week unpaid trial." Among new migrants and working holiday job seekers this is sometimes treated as a rite of passage, but under Fair Work standards this kind of long unpaid trial is illegal in most cases. In Australia, if you work you have the right to be paid at least the minimum wage regardless of your visa type (Fair Work Act 2009, National Employment Standards — NES), and unpaid work is only permitted in the very narrow exceptions explained below.

The requirements for a legal unpaid work trial as set out by the FWO are very narrow. You must meet all three of the following, and if even one is not met, that time can be treated as paid employment.

The Fair Work Act 2009 defines a vocational placement (a work placement in a course of study) as an exception where unpaid work is legal. However, this only applies where the following requirements are met, and being a "student" alone does not justify unpaid work. An internship you arrange personally, unrelated to your course of study, is not covered by this exception.

• A compulsory course requirement — the placement must be arranged as a required subject of a degree or certificate course (with credit recognition, etc.)
• Arranged or approved by the educational institution — the placement must be approved and arranged through an educational institution such as a university, TAFE, or RTO
• An approved education or training course — it must be part of a course approved under Commonwealth or state legislation or administrative processes

Real situations vary, but under Fair Work standards they can broadly be divided into four types. Check which one your situation is closest to.

If the time you worked unpaid amounts to paid labour, respond in the following order. It helps to read this alongside the payslip check guide and the migrant worker rights guide.

• Secure records first — notes of your start and finish times, screenshots of work instructions by text or messenger, photos of the roster, and even the names of people you worked with. Memory fades, but records become evidence.
• Calculate the correct wage — use the FWO Pay and Conditions Tool (P.A.C.T.) to check the minimum hourly rate under the relevant award for your occupation and work out the amount to claim.
• Make a written claim to the employer — set out the facts of your work and the amount claimed in a form that leaves a record, such as email, and request payment. Many cases are resolved at this stage.
• Report to the Fair Work Ombudsman — you can report anonymously, free interpreting is available (TIS 131 450), and you can get help regardless of your visa status.
• Small claims — if payment continues to be refused, you can claim your unpaid wages through the court's simplified process (limitation period usually six years; check officially for the latest limits and procedures).

Many of the things you often hear on the ground differ from Fair Work standards. Watch out especially for the misconceptions below.

• "Everyone here does it this way" — even a common practice, if unlawful, is still unlawful. The fact that long unpaid trials are common is no basis for their being legal.
• "It's unpaid because it's a probation period" — a probation period is paid from the very first hour. Probation is not a basis for unpaid work.
• Staying silent out of visa worries — reporting to the FWO is independent of your visa status, and if you meet the requirements, the reporting protections currently in operation can protect you so that your visa is not cancelled because of a work-related visa condition breach.
• Being made to get an ABN and disguised as a "contractor" — if you are in substance an employee, this is sham contracting and is prohibited. Having an ABN does not change the assessment of the employment relationship.
• Starting without records — record your hours and the work you do from the first day of a trial or internship. It makes the biggest difference when you later make a claim.