Unpaid work trials and internships — how far is legal (under Fair Work)
A "2-week unpaid trial" is illegal in most cases. This guide sets out the narrow requirements for a legal unpaid work trial under the official Fair Work standards, how to identify internships, and the process for recovering unpaid wages.
A "2-week unpaid trial" is illegal in most cases
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 key distinction — is it a "skills demonstration" or "labour"?
The Fair Work Ombudsman (FWO) bases its assessment not on the label in a contract but on the substance. The key question is "who gained the main benefit during that time." If an applicant only briefly demonstrated their skills, it may be a hiring assessment; but if they did productive work that benefited the business — such as serving customers and contributing to revenue — an employment relationship exists and an obligation to pay wages arises. The labels "trial," "intern," or "work experience" have no bearing on this assessment.
The 3 requirements for a legal unpaid trial
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.
Permitted duration — "the minimum time needed to demonstrate skills"
The permitted time is only "as long as it takes to demonstrate the skills needed for that role." The FWO advises a standard of a few dozen minutes to a few hours, and at most usually within one shift (one shift), depending on the nature of the role. For example, for a barista trial the point is that making a few coffees is enough. A "trial" running over several days or weeks directly breaches this standard.
- Minimum necessary time — only as long as it takes to demonstrate the skills for that role (from a few dozen minutes to a few hours depending on the role, usually within one shift)
The exception where unpaid work is legal — vocational placement (a required practical placement in a course of study)
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
4 types by situation — which one applies to me
Real situations vary, but under Fair Work standards they can broadly be divided into four types. Check which one your situation is closest to.
Where you demonstrate skills only for the minimum necessary time under direct supervision (usually within one shift) in order to assess you for hire. Within this narrow scope, being unpaid may be lawful.
A vocational placement that is compulsory under a school curriculum and approved and arranged by the educational institution. Being unpaid is legal, but work that goes beyond the requirements is not part of the exception.
An unpaid internship where you work like a regular employee and the business gains the main benefit. If it is treated as an employment relationship, the minimum wage and NES all apply, and being unpaid is unlawful.
A pattern of only running unpaid trials and never hiring. A business that repeatedly makes the same offer to multiple applicants may be signalling an attempt to obtain unpaid labour, so be careful.
When you haven't been paid — the 5-step response
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.
5 cautions and common misconceptions
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.
Useful official links
- Fair Work Ombudsman — Unpaid work(opens in a new window)
Official guidance on the legal and illegal standards for unpaid work overall — distinguishing trials, internships, volunteering, and student placements
- FWO — Work experience & internships(opens in a new window)
The official Fair Work criteria for determining whether an internship or work experience amounts to an employment relationship
- FWO — Pay and Conditions Tool (P.A.C.T.)(opens in a new window)