Proposed “Right to Disconnect” Award Term

On 26 August 2024, the Right to Disconnect amendments to the Fair Work Act will commence.

The “right to disconnect” will make it unlawful for an employer to take adverse action against an employee who refuses to monitor, read or respond to communication from an employer (or a third party in relation to work) outside of the employee’s working hours – unless the refusal is unreasonable.

The Fair Work Commission (FWC) is required to amend modern awards by inserting an express term to enshrine the “right to disconnect” entitlement. It is also to provide guidelines on the “right to disconnect”. So, yesterday, following a period of consultation with industry groups and unions, the FWC published a draft ‘Employee right to disconnect’ term to be inserted into Awards.

Interestingly, the first 3 subclauses merely repeat the statutory amendment for the “right to disconnect” and state that an employer must not directly or indirectly prevent an employee from exercising the “right to disconnect”. The draft clause then goes on to provide that the prohibition on preventing an employee from exercising the “right to disconnect” will not apply:

1. if the employee is being paid a standby allowance;
2. the contact is to notify the requirement to attend or perform work; and
3. the contact is in accordance with usual arrangements.

In the draft clause issued by the FWC, an example given of “usual arrangements” is an emergency roster change or a recall to work.

It appears, therefore, that other than when employees are paid to be on standby, it will be reasonable for an employee to refuse to monitor or read a communication from an employer unless the communication is about the requirement to attend or perform work, or notice of an emergency change to rosters.

This may well mean, for example, that it will be unreasonable for an employee to ignore a text from their employer before work in the morning, if the usual practice is for the employer to text and confirm the location or address of their first work appointment. It is also going to be important to establish, identify, record and communicate to employees (or consult with employees) on the business’s usual practices in relation to out of worktime communications.

The FWC is asking for submissions on the draft by midday Thursday, 1 August 2024. Submissions are to be sent to awards@fwc.gov.au.

A link to the draft clause is here: Draft Employee Right to Disconnect Term.