FWC full bench finalises Right to Disconnect award term

A full bench of the Fair Work Commission has determined that the new award term for the recently legislated Right to Disconnect should be “intentionally minimalist in nature, reflecting the novelty” of the new workplace rights.

Today (26 August), the new Right to Disconnect starts for employers that are not small businesses, due to the legislative changes brought about by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.

A Coalition government, Opposition Leader Peter Dutton has suggested, would move to overturn the new laws.

In mid-March, FWC commenced its undertaking to vary all modern awards to include the Right to Disconnect by today’s date, during which it sought and received proposals and submissions and engaged in a consultation hearing. In mid-July, the commission published a draft term for the Business Equipment Award 2020, and then again sought input from interested parties.

On Friday, 23 August, a FWC full bench finalised the term, which will be added to all 155 modern awards.

In its decision, a full bench – comprising president Justice Adam Hatcher (pictured), vice president Ingrid Asbury, deputy president Bernadette O’Neill, and commissioner Sarah McKinnon – resolved not to make any fundamental changes to the draft term.

That draft, the bench mused, is “intentionally minimalist in nature, reflecting the novelty of the right to disconnect and the likelihood that future variations to the term in particular awards will be necessary once the issues affecting specific industries and occupations are better understood”.

It did move, however, to bolster the draft term’s explanatory note, explaining that general protections provisions prohibit adverse action against employees under s33M of the Fair Work Act, and make clear that employers can contact employees outside of hours in the event of a short-term roster change.

The commission intends, the full bench noted, to undertake a review of the terms in modern awards in a year’s time, allowing the opportunity for practical difficulties in the operation and application of the terms to be flagged.

“We confirm that we do not intend to make guidelines concerning the Right to Disconnect at the present time.

“We consider that the commission 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,” the full bench wrote.

Last month, The HR Leader Podcast hosted Dr Gabrielle Golding, a senior law lecturer at the University of Adelaide, to discuss what might constitute reasonable contact of staff under the new term, as well as the “teething issues” that may be experienced in the short term by employers – who will thus have to err on the side of caution in their approach to contacting employees.