It's increasingly common for junior or trainee employees to
be asked to undertake some sort of unpaid time as part of their
entry into employment. So, when is it legitimate not to pay for
It is clear that traditional work experience, usually by school
students, isn't "work," because although the student
might undertake some tasks, those tasks generally don't
substitute for having a paid employee do the work, and the
engagement is usually for a strictly limited time, and an
educational experience rather than work in its proper sense. On the
other hand "interns" doing work which paid employees
would otherwise be doing, would usually be entitled to payment in
accordance with an applicable award, for at least the Federal
In a recent case, the Fair Work Ombudsman (FWO) took a shop
which engaged junior employees on a series of "work
trials" to Court. One employee was paid the average of $3.30
an hour for work trials over 12 days, and another $80.00 for 25
The FWO took the view that the number and length of unpaid
trials was inappropriate for a retail position. The FWO had no
issue with "trialling a new employee to test their
suitability" however, there should be limit to it, relative to
the level of skill required for the job. The FWO felt that one or
two hours on one day might be in order, but hours beyond that look
like an employment relationship, so wages should be paid.
The shop-owner paid all outstanding entitlements, and entered an
enforceable undertaking, promising future compliance with workplace
law and to attend educational courses to understand their
obligations under workplace law.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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