The Fair Work Commission has released its much anticipated draft wording to insert into all modern Awards regarding the right to disconnect. The right to disconnect will be a formal workplace right which allows employees to disconnect from work outside of their ordinary and usual work hours. The changes commence on 26 August 2024 for non small business employers and 26 August 2025 for small business employers.
The Wording
The proposed wording encompasses the following:
1. The Employee’s Right
1) unless it is unreasonable to do so, an employee may refuse to monitor, read or respond to contact, or attempted contact, from:
a) their employer outside of the employee’s working hours,
b) a third party if the contact or attempted contact relates to, their work and is outside of the employee’s working hours,
2. When the employee is being unreasonable
Matters that must be taken into account in determining whether an employee’s refusal is unreasonable are as follows:
1) the reason for the contact or attempted contact;
2) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
3) the extent to which the employee is compensated:
a) to remain available to perform work during the period in which the contact or attempted contact is made; or
b) for working additional hours outside of the employee’s ordinary hours of work;
4) the nature of the employee’s role and the employee’s level of responsibility;
5) the employee’s personal circumstances (including family or caring responsibilities)
3. Employer cannot prevent exercising the right
An employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act.
4. Payment of a Stand by allowance
This clause does not prevent an employer from requiring an employee to monitor, read or respond to contact, or attempted contact, from the employer outside of the employee’s working hours where:
1) the employee is being paid a stand-by allowance under the relevant Award clause;
2) the employer’s contact is to notify the employee they are required to attend or perform work; and
3) the employer’s contact is in accordance with the usual arrangements for such notification.
5. Emergencies or recalls
This clause does not prevent an employer from contacting, or attempting to contact, an employee outside of working hours to notify the employee, in accordance with the usual arrangements for such notification, of:
1) an emergency roster change or
2) a recall to work under the relevant Award clause.
Guidance
Detailed guidance on how the above will operate practically is not going to be provided by The Fair Work Commission until after:
- the new right commences; and
- there have been some applications
as it will then have some understanding about the practical issues which may be relevant once there have been some cases. The wording may slightly differ from award to award.
Recommendations
If contact with employees outside of standard working hours occurs in your business, whether that contact comes from within the business itself or from clients or customers, then employment contracts need to be reviewed and policies updated or implemented.
If you would like to discuss any of the above information further or have questions relevant to your specific Award(s) please contact our Employment Team on (02) 4927 2900.