The right to disconnect has been a hot topic since the Closing Loopholes legislation came into effect earlier this year. There has been much confusion around what the employment landscape will look like after 26 August 2024 when the right to disconnect is implemented in all modern Awards. In particular, many employers have been confused about where it leaves them in terms of staffing arrangements.

On 23 May 2024, the Fair Work Commission released a statement that they have considered all 155 Awards and have released a singular 127 page audit regarding the proposed changes that the right to disconnect will have. It is important to note that this audit is not a final version of the right to disconnect provision and related terms, but rather a first draft which may be refined.

At this stage, the right to disconnect has the potential to impact four significant provisions;

• The span of hours worked by employees, inclusive of shift work.
• On call and recall requirements.
• Contacting of employees and the provision of notice for shifts.
• Managerial roles.

The audit has noted that the span of hours employees are to be available may be affected. The right to disconnect gives employees the ability to refuse work-related contact from an employer or third party outside the employee’s working hours.

The audit analysis outlined that the right to disconnect may also impact on-call and re-call requirements given employees will have a right to refuse work-related communications after hours. It is likely we will see restriction on when an employer can require an employee be re-called or when and for how long they must remain on-call after hours. For industries such as health care, the interplay between the right to disconnect and these provisions will be of particular significance.

The right to disconnect may not extend to employers contacting their employees regarding shift changes and shift covers. Notice provisions provided for in employment contracts and enterprise agreements may also affect the full implementation of the right to disconnect.

The right to disconnect puts a heavy focus on the employee’s role and responsibilities when considering if a refusal of work-related communication is reasonable. For those in positions of leadership, such as managers and supervisors, it could raise questions about what exactly is reasonable in their specific individual circumstances. Employers may need to carefully consider the specific responsibilities of their management personnel before requesting communication or work outside hours be undertaken.

The Commission is accepting submissions from the public in relation to the right to disconnect and how to implement it into all modern awards. Submissions will be accepted until 11 June 2024, with discussions following from 17 June until 21 June. The Commission will then publicise the finalised draft terms on 15 July 2024. Any comments on the final draft terms are to be made by 1 August 2024, with final terms published on 23 August 2024.

If you are concerned about the right to disconnect and how it will implement your business, you can contact the Commission with a submission or general enquiry at awards@fwc.gov.au. Please note that all submissions will be published on the Commission’s website.

Should you have any questions about how these changes may affect your organisation or wish to update your employment contracts and/or enterprise agreements to include a right to disconnect clause, do not hesitate to reach out to a member of our team for assistance.

Isabelle Daley, Graduate Associate