26 August 2024 was a significant date for employers, with changes to a significant number of Closing Loopholes reforms for the engagement of different forms of labour coming into effect. A key reform that continues to drive significant concern and debate is the 'right to disconnect'.
The 'right to disconnect' took effect from 26 August 2024* as a new protected right in the Fair Work Act 2009 (Cth) (FW Act). The reforms empowered the Fair Work Commission (FWC) with new powers and dispute resolution pathways.
While employers are now familiar with this new legal right, it is important to note that the FWC was also required to vary all 155 modern awards to include a right to disconnect clause.
As part of its consultation process, the FWC issued a draft 'Employee right to disconnect' modern award clause and conducted an audit of the modern awards. A key concern was the impact that the new clause would have on other modern award clauses also dealing with work and contact outside of ordinary hours, such as on-call allowances and recall to duty.
The new modern award clause, published by the FWC on 23 August 2024, is now in effect*. The Full Bench of the FWC signalled that the clause may be subject to further changes on a more individual modern award basis as the practical impact of the clause in each modern award is assessed. The Full Bench stated that the term is "intentionally minimalist in nature reflecting the novelty of the right to disconnect and 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."
The FWC intends to review the right to disconnect clause in approximately 12 months. In the interim, parties can provide feedback on the practical challenges they encounter with the operation of the new clause.
Employers impacted by one or more modern awards can be reassured that the clause mostly reflects the right as contained in the FW Act plus mechanical clauses specific to modern awards but, in any event, should remain mindful of this new clause when making decisions and arranging work.
[*For small employers, this right will commence from 26 August 2025]
If you have any questions about the reforms and how the modern award changes could impact your business, please get in touch with our team below.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.