Starting 26 August 2024, most employers will need to comply with the new ‘right to disconnect’ provisions under the Fair Work Act 2009, with small businesses required to comply by 26 August 2025.  Broadly stated, these changes grant employees the right to refuse work-related contact outside work hours, without facing adverse action from employers. 

This article focuses on the model provision that has been inserted into modern awards, in relation to the right to disconnect.  For a more detailed analysis of the new right, you can read our article here: Right to Disconnect for Employers.

The Award Provision and the Right to Disconnect

The inclusion of the right to disconnect in modern awards, as required by the Fair Work Act, has added some complexity to the straightforward provisions outlined in the Act itself. While the Act is clear in granting employees the right to disconnect, the model award provision introduces some nuances that employers need to be aware of.

Key Differences in the Model Modern Award Provision

The model modern award provision does two things that the Fair Work Act does not:

1. Prohibition on Employers: It explicitly states that “an employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act.” This prohibition is controversial, as it goes beyond the scope of the Fair Work Act. The Fair Work Act does not impose such a restriction on employers.
2. Exemption for Award-Related Contact: The model award provision also clarifies that an employer will not be in breach of the right to disconnect if contacting an employee is consistent with another provision of the modern award. For example, under the Retail Award, contacting an employee regarding an emergency roster change or recalling them to work may be permitted.

Purpose of These Changes

These changes were apparently introduced to:

• Provide Alternative Dispute Resolution: The model award provision offers a separate avenue for resolving disputes outside the general protections regime, and enables employees to raise a dispute in the Fair Work Commission alleging a breach of the award. 
• Clarify Reasonable Contact: It also clarifies situations where it is reasonable for an employer to contact an employee, as defined by the specific award.

Criticisms of the Model Modern Award Provision

The introduction of the prohibition on employers preventing employees from exercising their right to disconnect has faced criticism for several reasons:

• Departure from the Fair Work Act: The prohibition goes beyond what the Fair Work Act requires and introduces unnecessary complexity. The Fair Work Act already contains protections for employees’ right to disconnect through the general protections regime, making the additional award provision arguably redundant.
• Vagueness of the “Indirect” Prevention Clause: The provision’s reference to “indirectly” preventing an employee from disconnecting is vague and could create significant uncertainty. Employers may struggle to understand or control how their actions might indirectly prevent an employee from exercising their right to disconnect, as this is often based on the employee’s perception or belief.

Potential Impact on Employers

This provision may expose employers to penalties if they take actions deemed to prevent an employee from exercising their right to disconnect, whether directly or indirectly. The lack of clarity around the “indirect” aspect could lead to disputes, making it essential for employers to tread carefully when managing communications outside of normal work hours.

Takeaways for Employers

Employers should check the modern awards that apply to their business, as the provisions related to the right to disconnect may vary between different awards. It’s crucial to understand the specific obligations and exceptions that apply to your business.

We’re yet to see how this will play out in practice, but the award provision adds an extra layer of complexity that employers need to navigate carefully.

The information in this update is a guide only. Seek professional advice before applying any information to specific circumstances. EmploySafe Legal does not accept liability for any errors contained in this update.

Kate Simpson
Managing Director – Employment & Safety Lawyer
+61 420 972 497
kate.simpson@employsafelegal.com.au