FWC publishes draft ‘right to disconnect’ modern award term

The president of the Fair Work Commission (FWC), Justice Adam Hatcher, has issued a statement that sets out a draft “right to disconnect” modern award terms.

The FWC is required to provide and insert a “right to disconnect” into all modern awards by 26 August 2024.

This draft term was prepared following a public consultation and submissions process. These submissions took place back in May and June of this year.

The draft has numerous clauses, including but not limited to:

• Unless it is unreasonable to do so, an employee may refuse to monitor, read, or respond to contact or attempted contact from:

1. 1. Their employer outside of the employee’s working hours.
   2. A third party if the contact or attempted contact relates to, their work and is outside of the employee’s working hours.

• There are certain matters that must be taken into account in determining whether an employee’s refusal is unreasonable.
• An employee’s refusal will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a state or a territory.

These clauses will apply from 26 August 2024 for businesses of more than 15 staff and their employees. However, for small-business employers, the clauses apply the following year, on 26 August 2025.

Furthermore, an employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the act.

Another 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 when:

• The employee is being paid the stand-by allowance.
• The employer’s contact is to notify the employee they are required to attend or perform work.
• The employer’s contact is in accordance with the usual arrangements for such notification.

Employers, according to another clause, are not prevented from contacting their employees outside of working hours if they are in accordance with the usual arrangements for such notification, which include:

• An emergency roster change under clause.
• A recall to work under clause.

The FWC is also required to make written guidelines about the overall operation of the right to disconnect. There is no deadline, legislation-wise, for the making of these guidelines. Justice Hatcher’s statement said he considers that we will be in a better position to make the guidelines after the commission has dealt with some disputes concerning the operation of the right to disconnect.

The FWC does not plan on making these guidelines before 26 August 2024.

HR Leader recently covered a dispute raised towards the right to disconnect, brought forward by the Association of Independent Schools (AIS), which represents employers in over 300 schools in the education sector.

The AIS lodged a Fair Work Legislation Amendment submission for the right to disconnect, pointing towards weekend sports and school camps as limitations on the right to disconnect and the possible challenges those certain situations could pose for the legislation.

The submission said: “As set out in clause 14.9 of the Teachers Award, the duties of a teacher may include co-curricular activities. In a school context, these may be wide-ranging and may involve sporting activities (including on weekends), school performances, musical programmes, other events, etc.”

Oliver Brecht, managing director and senior psychologist at Veretis, explained that some employees find purpose and meaning in the very work that they do, which makes them more than willing to do the overtimes and be on call for any job role past the conventional hours. Therefore, stripping them of that ability could have negative effects on their wellbeing.

“Purpose and meaning in your work and in your life [is a crucial element]. So, if you’ve got employees, and we work with a lot of big banks, and a lot of employees within those areas, it’s not a nine-to-five for them. It is part of how they define themselves, it’s part of how they build their self-efficacy and their self-esteem is on their job performance and engaging in their job role,” Brecht said.