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FAQ

Question:

Hi, I’m Chloe. I’m 20 and live in Hobart. Recently, I did a four hour trial for a waitressing job. My boss didn’t pay me even though she had agreed to pay $20 per hour and took my bank details. When I asked her to pay me, she said she wouldn’t pay for a trial period. Is this legal?




Answer:

Hi Chloe.
You must be paid for any trial work you undertake, when the work includes you doing productive work for the business, and not just demonstrating that you have the required skills. The minimum amount that the employer must pay you will depend on things such as your age and the type of agreement you have entered.

 

Does an employer have to pay you for trial work?

It is illegal (and unfair) for an employer not to pay you for a work trial. Employers can ask you to briefly demonstrate skills required for the job but when you are being asked to undertake a trial that involves productive work for the business, you must be paid for that work. You can find more information about this here: http://www.fairwork.gov.au/pay/unpaid-work/unpaid-trials

All employees, including those on trial, are entitled to conditions that meet the standards set out in the National Employment Standards and Modern Awards. These conditions set out the minimum wage for employees. Wage rates are dependent on a number of factors including experience in the industry and the specific duties performed. For specific details on your relevant award rate we recommend that you contact the Fair Work Ombudsman.

 

What can you do if you are not paid?

It may be helpful to write to Ms Dida advising her that you have sought legal advice and have been informed that she has acted unlawfully and that payment of tips is not considered payment of wages. You may also inform her that you will be reporting her to the Fair Work Ombudsman if you are not paid for the work performed.

For example, you may write:

Dear Ms Dida,
Thank you for your response to my email.

I have sought legal advice from the National Children’s and Youth Law Centre and have been informed that you have acted unlawfully under the Fair Work Act. Whilst I am aware that the work I completed for you was on a trial basis, the law says that a prospective employee trialling for the purpose of assessing suitability for employment is considered an employee and is entitled to be paid as such.

From our discussion and your action of taking my bank details, it was my understanding that I would be paid for my work, at a rate of $20 per hour. As I completed four hours work waitressing at your restaurant I believe that I am entitled to $80 in wages from you.
I kindly ask that you deposit this money into my bank account in payment for the work performed within 7 days. If I do not receive payment from you I will be reporting this matter to the Fair Work Ombudsman for formal investigation.

Kind regards,
Chloe.


By writing to Ms Dida specifying that you have sought legal advice you may be able to resolve the matter simply and quickly. If Ms Dida refuses to pay you, your next step would be to report the matter to the Fair Work Ombudsman.

The Fair Work Ombudsman
You may find it useful to contact the Fair Work Ombudsman (www.fairwork.gov.au) on 13 13 94 or between 8:00am and 6:00pm Monday to Friday to get assistance. The Ombudsman is there to give advice and help to employees to help them understand their workplace rights and responsibilities.

The Fair Work Ombudsman will be able to advise you of the relevant award rate at which you should be paid and also has the power to investigate complaints about breaches of workplace laws. By reporting Ms Dida’s failure to pay you to the Fair Work Ombudsman, the Ombudsman will be able to assist you in making a complaint and seeking payment. You should note that there is a time limit for making a complaint to the FWO and this is six years. If you want to report what has happened it is best to do so as soon as possible.


If you have any questions please send us a lawmail.

 

This page was last updated 18 July 2015.

   
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