How the New Right to Disconnect Will Apply to EMPLOYERS AND EMPLOYEES
The Fair Work Act 2009 (Cth) has introduced the Right to Disconnect from 24 August 2024 (24 August 2025 for small business employers). The Fair Work Commission is required to insert right to disconnect terms in all modern awards. As part of that process, it has completed an audit of the modern award terms which the right to disconnect may affect.
We look at some of the implications for all employers, given the changes will impact upon all employees covered by the Fair Work Act 2009 (Cth) from 24 August 2024 (24 August 2025 for small business employers).
The Right to Disconnect
New s 333M (1) and (2) of the Fair Work Act 2009 (Cth) introduces the right to disconnect, allowing employees to refuse to monitor, read or respond to contact, or attempted contact, from an employer or third party outside their working hours unless the refusal is unreasonable. The right to disconnect is a workplace right covered by the general protections provisions.
A non-exhaustive list of the factors that employers must consider when determining whether an employee’s refusal is unreasonable include:
the level of disruption the contact causes the employee;
the extent to which an employee is compensated for work or being available to work after hours;
the employee’s role and responsibility; and
the employee’s personal circumstances such as family responsibilities.
New Modern Award Right to Disconnect Terms
The changes also mean that the Fair Work Commission must consider the extent to which current modern award terms will be affected by the new Right to Disconnect from 24 August 2024.
Enterprise agreements may contain right to disconnect terms but from 24 August 2024 they will need to be no less favourable than those included in the relevant underlying modern awards.
New WORKPLACE RIGHT
The Right to Disconnect is a workplace right protected by the general protections provisions of the Fair Work Act 2009 (Cth). This applies to all employees including those who are award/agreement free.
What Should Employers Do?
Review the audit of the modern award terms to see the specific terms in the modern awards which cover your business.
Review enterprise agreements to identify any terms which the new Right to Disconnect may affect.
Review policies and procedures which may deal with work outside of hours such as remote or working from home arrangements.
Plan training for people managers to ensure that any new boundaries or procedures are followed.
Contact us for a comprehensive review or specific advice and assistance complying with the new requirements.
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