In our previous articles, we explored the introduction of the new right to disconnect entitlement under the Fair Work Act 2009 (Cth).
For employers with 15 or more employees, the entitlement commenced on 26 August 2024.
After conducting a consultation process, the Fair Work Commission (FWC) has also inserted supporting right to disconnect clauses in each of the modern awards.
Despite various unions pressing for award provisions to go far beyond the legislative provisions, the FWC elected a far more balanced clause, which otherwise seeks to clarify further when it would be unreasonable for an award covered employee, not to respond to contact, being where:
- the employee is receiving an on call allowance,
- the employer is notifying the employee that they are required to attend or perform work or give other notice about the on-call,
- there is an emergency roster change, or a recall to work.
We have previously discussed the concept of 'reasonableness' of an employee refusing to read, monitor and/or respond to contact from their employer or a third party, and have provided some tips for employers to assist in managing this new entitlement.
This area will likely evolve once cases start to be brought before the FWC, which will in turn provide greater guidance for the implementation and compliance with the provisions.
Tune into Barry Nilsson’s LinkedIn page for future articles from the Employment and Safety team as these cases come out to stay updated about the implications employers will face and the true extent of the right to disconnect.
