Right to Disconnect Award Term

The Fair Work Commission has released the Right to Disconnect term for awards. This term creates a formal workplace right that allows employees to disconnect from work outside of their usual work hours.

These changes start on:

26 August 2024 for non-small business employers
26 August 2025 for small business employers

The Full Bench has determined that it should take an intentionally minimalist approach to this clause. Particularly, as this type of clause is new and in 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 is important to distinguish the differences between this new clause and a clause that might relate to breaks or allowances. This clause establishes a ‘right’ to disconnect; as opposed to an entitlement to payment if the worker is contacted.

In general, the right establishes that employees will have the right to refuse contact outside their working hours unless that refusal is unreasonable. This means an employee can refuse to monitor, read or respond to contact from an employer or a third party.

Several factors must be considered when determining whether an employee’s refusal is unreasonable. This includes:

the reason for the contact
how the contact is made and how disruptive it is to the employee
whether the employee is compensated or paid extra for:
- being available to be contacted to perform work within a specific period, or
- working additional hours outside their ordinary hours of work

the nature of the employee’s role and level of responsibility
the employee’s personal circumstances, including family or caring responsibilities.

The award term articulates the above and provides specific guidance for employers and employees particularly in relation to:

prohibiting the taking of adverse action by an employer against an employee because of the employee’s rights,
confirming an employer’s capacity to contact an employee in receipt of an award stand-by allowance in respect of the stand-by,
an employer may contact or attempt to contact an employee outside of the employee’s working hours for emergent reasons like short-notice roster change or call-back provision

The Commission has indicated it will hold off making guidelines once it has dealt with at least some disputes concerning the operation of the right.

MEA does not anticipate that the introduction of this right will disrupt the status quo of how most electrical contractors operate their businesses. It does anticipate that education of workers and managers as to what these terms mean would be appropriate to assist with terms being used appropriately.

Employers are recommended to contact MEA Employer Advice Team on 1300 889 198 if they have questions regarding the operation of this term or in the event that they receive a dispute.

The detail of the new term to be inserted in the award, prior to the hours of work clause, has been provided below:

12A. Employee right to disconnect

12A.1 Clause 12A provides for the exercise of an employee’s right to disconnect under section 333M of the Act.

NOTE:

Section 333M provides that, unless it is unreasonable to do so, an employee may refuse to monitor, read or respond to contact, or attempted contact, from:
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.
Section 333M(3) lists matters that must be taken into account in determining whether an employee’s refusal is unreasonable.
Section 333M(5) provides that 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.
Section 333N provides for the resolution of disputes about whether an employee’s refusal is unreasonable and about the operation of section 333M.
The general protections in Part 3-1 of the Act prohibit an employer taking adverse action against an employee because of the employee’s right to disconnect under section 333M of the Act.

12A.2 Clause 12A applies from the following dates:

26 August 2024—for employers that are not small business employers on this date and their employees.
26 August 2025—for employers that are small business employers on 26 August 2024 and their employees.

12A.3 An employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act.

12A.4 Clause 12A.3 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:

the employee is being paid the stand-by allowance under clause 20.5; and

the employer’s contact is to notify the employee that they are required to attend or perform work or give other notice about the stand-by.

12A.5 Clause 12A.3 does not prevent an employer from contacting, or attempting to contact, an employee outside of the employee’s working hours in circumstances including to notify them of: