Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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Hiring in a small business can feel like a balancing act. You want to move quickly, avoid a bad hire, and make sure new staff can actually do the work. At the same time, you need to get the legal basics right - especially when it comes to trial shifts.
If you’ve been searching for an unpaid trial in NSW, you’re probably asking a very practical question: Can I ask someone to come in and “try out” for a shift without paying them?
In many situations, unpaid trial shifts are high risk for employers - and a lot of “trial shift” arrangements can amount to work that needs to be paid under the Fair Work Act 2009 (Cth) and the relevant modern award or enterprise agreement.
This article is general information for NSW employers and isn’t legal advice. Whether a trial must be paid depends on the specific facts (including the tasks performed, how long it goes for, and whether the business receives a benefit). If you’re unsure, it’s worth getting tailored advice.
This guide breaks down what a “trial shift” really is, when (if ever) it can be unpaid, and how to run a lawful, practical process in NSW that still lets you assess skills before you hire.
What Counts As An “Unpaid Trial” In NSW (And Why It’s Risky)
In practice, an “unpaid trial shift” usually means you invite a candidate to attend your workplace for a few hours (or a full shift) to show you they can do the job. This is common in hospitality, retail, trades, admin roles and many service businesses.
The legal issue isn’t the label you use (trial, test, induction, probation). What matters is what the person is actually doing.
Work Is Work (Even If You Call It A Trial)
If the person is:
- performing tasks that are part of the role (serving customers, preparing food, cleaning, handling stock, doing admin work)
- working under your direction and supervision
- contributing to your business operations (even in a small way)
…then it may be considered “work” and they will generally need to be paid for that time (including at least the applicable minimum rate).
That’s why unpaid trials in NSW can be tricky: many businesses mean well, but accidentally end up underpaying someone.
Why Employers Use Trial Shifts (And The Legal Tension)
Trial shifts make sense commercially. They help you assess:
- technical skills (speed, accuracy, attention to detail)
- customer service
- workplace fit and communication
- reliability and punctuality
The tension is that these are often the same things a person demonstrates by doing real work. If the trial produces value for your business, a regulator (or a court) is more likely to view it as paid work rather than a “free try-out”. Fair Work’s guidance generally focuses on the reality of the arrangement - including whether the person is performing productive work and whether the business benefits.
When Can A Trial Shift Be Unpaid?
There are very limited circumstances where an unpaid trial may be defensible. The safest way to think about it is this:
An unpaid trial should be short, genuinely for testing skills, and not involve productive work that benefits your business.
Even then, it’s often safer to pay the person. Payment reduces your risk and signals good faith.
What An Unpaid Trial Might Look Like (Low-Risk Examples)
While each situation depends on the facts, lower-risk examples tend to look like:
- Very short demonstrations (for example, 15–30 minutes) where the candidate shows a skill in a controlled setting
- Observation-only (job shadowing) where the candidate watches and asks questions, and doesn’t perform tasks
- Skills tests that are clearly “tests” (e.g. a barista makes a coffee specifically for assessment, not for a paying customer)
The moment the person starts replacing rostered labour, serving paying customers, or meaningfully contributing to your operations, the arrangement starts looking like paid work.
Red Flags That Usually Mean You Must Pay
Unpaid trials in NSW are more likely to be non-compliant if:
- the trial lasts hours (especially a full shift)
- the candidate is doing the same work as other staff
- you are short staffed and the trial fills a gap
- the candidate is handling customers, money, or key duties
- you ask them to come back for multiple “trial” shifts
If you’re relying on their labour, you should budget to pay them.
How To Run A Lawful Trial Shift Process In NSW (Step-By-Step)
If you want to assess candidates properly and reduce legal risk, it helps to treat trial shifts as a structured process rather than an informal arrangement.
1. Decide What You’re Actually Testing
Be clear about what you need to assess. For example:
- Can they use your POS system?
- Can they follow hygiene and safety steps?
- Can they communicate well with customers?
- Can they work at the required pace?
If you can test these through a short demonstration or simulation, you can often keep the trial brief and reduce the risk of it looking like unpaid work.
2. Keep The Trial Short And Structured
Longer trials are harder to justify. If you want a longer assessment, the practical (and safer) approach is to treat it as paid work.
Many employers choose to pay for any trial that runs beyond a short skills check. It’s often cheaper than dealing with an underpayment dispute later.
3. Put The Arrangement In Writing Before They Start
Even for a short trial, you should confirm key terms in writing, such as:
- the date, start time, and end time
- where the trial takes place
- what tasks (if any) they will do
- whether it is paid, and if so, the rate
- that it is an assessment and not an offer of ongoing employment
This helps manage expectations and reduces misunderstandings.
4. If In Doubt, Pay Them (And Pay Correctly)
If there’s any real chance the trial looks like productive work, paying is usually the best risk-management move.
This includes paying the correct minimum rate under the relevant award, plus any applicable loadings (for example, casual loading) and penalty rates if the trial occurs on weekends or late nights.
Having a proper Employment Contract ready to go also helps you move quickly when you decide to hire.
5. Record The Hours And Keep Basic Records
Even if it’s “just a trial”, treat it like time worked and keep basic records (start/finish times and what happened). If a question is raised later, good records can make a big difference.
Common Employer Scenarios (And What To Do Instead)
When small businesses search “unpaid trial NSW”, it’s usually because they’re facing one of these real-world situations.
“We Want A Full Shift To See If They Can Handle The Rush”
If you need a full shift to assess performance during peak trade, it’s very likely the person will be doing real work that benefits your business. In most cases, you should treat it as paid time.
You can still keep control by making it clear it’s a paid trial and there’s no guarantee of ongoing employment.
“They Offered To Do It For Free”
Even if the candidate volunteers to do an unpaid trial, this doesn’t automatically make it lawful. Employment laws are designed to set minimum standards and prevent exploitation, even where people feel willing in the moment.
From a risk perspective, relying on “they agreed” is rarely a good defence if the arrangement looks like work.
“We’re Training Them, So It’s Not Work Yet”
Training can still be paid time, depending on what’s happening in practice. If the person is attending your workplace at your request and participating in training activities that are part of assessing them for (or preparing them to perform) the role - especially where the business is receiving a benefit - you should assume payment is likely required unless you have clear advice otherwise.
“Can We Just Call It A Probation Period?”
Probation is different from a trial shift. Probation generally applies after employment has started (meaning the person is on the books and being paid), and it’s governed by the employment relationship and your contract terms.
If you’re not ready to formally employ someone, a short skills demonstration may be more appropriate than trying to “probation” them informally.
What Other Laws And Documents Should Employers Think About?
Trial shifts are only one piece of building a compliant hiring process. If you’re employing staff in NSW, it’s worth making sure your broader foundations are in place too.
Pay And Rostering Basics
Underpayment issues often arise because businesses don’t have a clear approach to roster changes, shift changes, and cancellation rules. If your roster changes at short notice, it can trigger obligations under an award or agreement.
A clear Shift Cancellation Policy can reduce confusion and help your managers apply consistent rules.
Workplace Policies That Support You Day-To-Day
Even in a small team, policies help set expectations about conduct, confidentiality, and performance - which can make onboarding smoother once you hire. The right policies will depend on your workplace and the kind of role you’re recruiting for.
Privacy And Record-Keeping
If you’re collecting resumes, IDs, bank details or other personal information during recruitment, you should think about privacy compliance and how you store that information.
Depending on your business and what information you collect, a Privacy Policy may be relevant, especially if you recruit through your website or collect applications online.
Reducing Disputes With Clear Documentation
Many trial shift disputes happen because nothing was documented. A short written note confirming the trial’s purpose, duration and whether it’s paid can prevent misunderstandings.
If you do end up hiring, a well-drafted Casual Employment Contract (or the right contract for the role) can also clarify pay rates, hours, and key expectations from day one.
Key Takeaways
- For most small businesses, an unpaid trial shift in NSW is risky because if a candidate performs productive work, they will generally need to be paid.
- An unpaid trial is only likely to be defensible where it’s short, genuinely for assessment, and the person is not doing work that benefits your business.
- If the trial involves normal duties, serving customers, covering staff shortages, or runs for hours, it should usually be treated as paid work.
- A practical, lower-risk approach is to run a short structured skills check or to pay for longer trials at the correct award rate.
- Confirming the trial in writing, keeping time records, and having the right contracts and policies in place can help prevent misunderstandings and underpayment claims.
If you’d like a consultation on setting up a compliant trial shift and hiring process for your NSW business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
