‘Right to Disconnect’ accessible to eligible employees from 26 August

Commencing 26 August 2024, employees of employers that are not small business employers will have access to the new right to disconnect mechanism, which results from the continued rollout of the Albanese Government’s ‘Closing Loopholes No. 2’ legislation. The right to disconnect will become available to employees of small business employers from 26 August 2025.

The Fair Work Commission (FWC) has been charged with the responsibility of varying each Modern Award to include a standard right to disconnect clause to give effect to incoming section 333M of the Fair Work Act 2009 (Cth). The new section 333M – originally the brainchild of Greens Senator, Barbara Pocock, rather than the Labor Government – entitles an employee to refuse to monitor, read or respond to contact, or attempted contact, from their employer (or a third party) outside of the employee’s working hours, unless the refusal is unreasonable. In determining whether an employee’s refusal to respond to their employer (or a third party) is unreasonable, the following considerations will be relevant:

(a)   the reason for the contact or attempted contact;

(b)   how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

(c)   the extent to which the employee is compensated:

(i)    to remain available to perform work during the period in which the contact or attempted contact is made; or

(ii)   for working additional hours outside of the employee’s ordinary hours of work;

(d)   the nature of the employee’s role and the employee’s level of responsibility;

(e)   the employee’s personal circumstances (including family or caring responsibilities).

Note: For the purposes of paragraph (c), the extent to which an employee is compensated includes any non‑monetary compensation.

The above criteria are familiar, reflecting long-standing considerations in respect of an employee potentially refusing to perform additional hours (i.e. overtime) or work on a public holiday.

Once settled, the right to disconnect clause will be tailored for each Modern Award and will have regard for existing award clauses which might already provide for standby, call-back, on call and/or recall (to work overtime) arrangements.  In short, an employee will not be entitled to invoke the right to disconnect where they have agreed to be compensated for potentially being disturbed by their employer (or a third party) outside of working hours. The ability to make roster changes in the event of emergency (e.g. staff absence/s due to illness), where a Modern Award provides for this, will also be preserved.

The FWC has until 23 August to finalise and publish the determinations varying each Modern Award, with the clauses becoming operative (for other than small business employers) from 26 August.

New Dispute Pathway

Where a dispute arises as to an employee’s right to disconnect and it cannot be resolved at the workplace level, either an employer or an employee may apply to the FWC for “an order to stop refusing contact or to stop taking certain actions”, or for the FWC to otherwise deal with the dispute.

The dispute pathway will be modelled on the current jurisdictions pertaining to bullying and sexual harassment stop orders, however, initial right to disconnect disputes will be presided over by a Full Bench of the FWC “in order that authoritative guidance is available to the Commission’s stakeholders and members”. In time, right to disconnect disputes will be allocated to individual Commission members.

An employee’s right to disconnect will also be enshrined as a workplace right, meaning the general protections jurisdiction can be enlivened where an employee believes they have suffered adverse action (e.g. disciplinary action, termination of employment, etc) because they exercised their right to disconnect.

Compliance Guidelines to follow

As part of Closing Loopholes No. 2, the FWC is also required to create guidelines about the operation of the right to disconnect, but, unlike the variation of the Modern Awards, there is no deadline imposed on the release of the guidelines. As such, the Commission “considers that it will be in a better position to make guidelines once it has dealt with at least some disputes concerning the operation of the right since this will allow it to have some understanding of the practical issues for which guidance may be required”.

In the meantime, updated Modern Awards inclusive of the new right to disconnect clause will start being made available to ES Subscribers towards the end of August, after the final determinations are published by the FWC.