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Having not yet considered any test cases or resolved any significant disputes pertaining to the Right to Disconnect term in modern awards, the Fair Work Commission is now seeking guidance on how best to proceed.
In August 2024, a full bench of the Fair Work Commission (FWC) determined that the new award term for the then-newly legislated Right to Disconnect should be “intentionally minimalist in nature, reflecting the novelty” of the new workplace rights.
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, which was published last July.
That draft, the bench mused at the time, was “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”.
The term was added to all 155 modern awards, and took effect for all national system employers, apart from small-business employers, and their employees on 26 August 2024, and will take effect for small-business employers and their employees on 26 August 2025.
The full bench foreshadowed that the FWC would undertake a review of the right to disconnect terms in modern awards approximately 12 months after the terms first took effect, “giving the parties the opportunity to raise any practical difficulties which they perceive have arisen in the operation of the term”.
Moreover, the full bench confirmed it did not intend to make guidelines concerning the right to disconnect at that time, as it considered that FWC “would be in a better position to make guidelines once it had dealt with at least some disputes concerning the operation of the right, since this would allow it to have some understanding of the practical issues for which guidance may be required”.
In a decision posted yesterday (Thursday, 21 August), Justice Hatcher, Asbury, O’Neill, and McKinnon wrote that while the modern award terms have now been in operation for 12 months, FWC has not yet considered any test cases or resolved any significant disputes in accordance with the terms.
Nor, the bench went on, has the commission been asked to deal with any test cases regarding the substantive right to disconnect provisions in the Fair Work Act.
As a result, the bench has determined to invite submissions about whether it is necessary to conduct a review of the model award term, and whether FWC should now make guidelines, “noting the lack of any guiding case authority at this point”.
FWC has opened submissions, which are due by midday on Friday, 3 October.
Jerome Doraisamy is the managing editor of Momentum Media’s professional services suite, encompassing Lawyers Weekly, HR Leader, Accountants Daily, and Accounting Times. He has worked as a journalist and podcast host at Momentum Media since February 2018. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.
