The Fair Work Commission (FWC) is undertaking a process that will result in a model award term being inserted into all modern awards regarding the new right to disconnect in the Fair Work Act 2009 (Cth) (FW Act). These terms will take effect on 26 August 2024 (or in the case of small business employers, 26 August 2025).

The award term will create a new avenue of potential liability for employers that discipline employees for not responding to after-hours communications about work matters.

Currently, there is no prohibition on employers initiating these communications (although the FWC can order that employers not do so in specific cases). The liability arises if the employer takes adverse action against an employee for not responding. That might be the issuing of a warning or even dismissal. If the employee’s refusal to respond was not unreasonable, this action will expose the employer to contravention of the general protections provisions of the FW Act.

Once the modern award term takes effect, the employer may also face liability for contravening a modern award. This could lead to the imposition of penalties and orders for compensation and/or reinstatement.

The content of the model award term has not yet been determined. However, a paper issued by FWC researchers suggests the FWC will assume that if an employee is expected to be available for work communications, they will be regarded as being at work. In that event, the FW will need to resolve how this interacts with the following award provisions:

• overtime and limits on being required to work hours in addition to 38 a week that are unreasonable;
• minimum engagement/payments;
• recall to duty;
• on-call arrangements;
• telephone allowance;
• broken shift provisions or provisions requiring work hours to be continuous;
• span of hours; and
• maximum daily hours.

The right to disconnect was inserted in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 at the last minute to secure the passage of the legislation. It’s apparent that the full consequences of this entitlement may not have been properly considered. The right to disconnect may amount to nothing – or it may redefine the question of when an employee is at work or not at work.

Are your workers properly supervised? If an accident happens and you can’t prove they have been, the consequences can be severe.