The Right to Disconnect and Award Terms
All modern awards now contain an Employee right to disconnect term. These terms apply to all employees covered by the Fair Work Act 2009. The terms are with effect from 26 August 2024 for non-small business employers and from 26 August 2025 for small business employers.
These changes were brought about by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, creating a formal workplace right that allows employees to “disconnect” from work outside of their usual working hours.
The term confirms that the employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Fair Work Act.
What this means is that outside of their normal (or ordinary) working hours, employees can refuse to monitor, read or respond to contact or attempted contact from their employer, or another person where the contact is work related (ie from a client or subcontractor of the employer).
A refusal by an employee may be unreasonable, dependant on various individual circumstances. The following factors must be considered:
- the reason for the contact
- the nature of the employee’s role and level of responsibility
- the employee’s personal circumstances
- how the contact is made (and how disruptive it is to the employee); and
- any relevant extra pay or compensation they receive for working additional hours or remaining available to work out of hours
The new term also does not prevent the employer from requiring and employee to monitor, read or respond to contact (or attempted contact) from the employer outside of the employees normal working hours where:
- The employee is being paid for being on standby and
- The employer’s contract is to notify the employee that they are required to attend or perform work or give other notice about the standby; or
- In circumstances including to notify the employee of a recall to work.
Some employment agreements may also contain a different right to disconnect term but where the agreement terms continue to be more favourable for the employees then these terms will continue to apply.
Do you want to learn more about how to best manage your employee expectations inside and outside of normal hours? Or perhaps you have other HR matters you would like to discuss? Please contact us at [email protected] or 1300 720 004.
