The regulatory connections involved in enacting the Right to Disconnect

Back in March 2023, Australian Greens leader Adam Bandt put forward a Private Members Bill to enshrine a new Right to Disconnect as part of the National Employment Standards.

At just one and a half pages long, the Bill envisaged a blanket provision preventing employers communicating with employees outside of work hours absent an ‘availability allowance’, and subject to two narrow exceptions for emergencies or ‘genuine welfare’ matters. The Bill sank without a trace, as it should have.

Fast forward to February 2024, when the Government introduced “Right to Disconnect” provisions at the death of the major tranche of the Closing the Loopholes reforms. There had been no debate, it simply landed and was promptly passed into law, potential criminal sanctions and all (the removal of which is the subject of further amending legislation that is expected to pass shortly).

Of course, there are those who have lauded the introduction of a statutory Right to Disconnect and opined that in general terms, it won’t be a significant issue and not much will change when the new workplace right comes into effect on 26 August 2024 (or 26 August 2025 for small business employers and their employees).

But how true is that?

Certainly, the Fair Work Commission has an idea about the potential regulatory impacts as it contemplates the specific work before it – the development of a new ‘right to disconnect’ clause to be included in all modern awards by 26 August 2024.

On 12 March 2024, the President of the Commission issued a Statement noting that in the absence of information about the new Right to Disconnect provisions in the Explanatory Memorandum, the only guidance provided by the mover of the new provisions was that they are intended to “rebuild the boundary around workers’ personal time and create a safeguard for that time” and “of course, to reduce unpaid working time and wage theft”.

Rebuilding this invisible ‘boundary’ is not a minor aim but involves a re-imagining – or ‘un-bundling’ – of an array of working practices operating amidst a complex system of legislation, industrial instruments and contractual terms, bargained for and informed by a range of influences and developments, including relevantly, flexibility gains and of course, the technological advancements that have, at least in part, facilitated those gains.

Not much involved in that, surely?

The President’s Statement referred to analysis undertaken by Commission staff of existing modern award provisions that may potentially impact on the development of the new “right to disconnect” award term and accompanying written guidelines (which the Commission will also be required to produce as to its operation).

The list of modern award provisions that may impact – or be impacted by – the proposed ‘right to disconnect’ award term is interesting and expansive, reflecting the complexity of the task at hand, including:

  • Overtime provisions and rest periods after overtime
  • Reasonable additional hours
  • Minimum payment periods
  • Recall to duty provisions, including minimum payment periods
  • On call
  • Telephone Allowance
  • Broken shifts or the requirement to work shifts continuously
  • Span of hours
  • Maximum daily hours
  • Averaging of hours
  • Changes to rosters

The analysis of these provisions reflects that things aren’t always as simple as they seem, for example:

Minimum payment periods

The RTD could impact the interpretation and application of minimum payment periods, particularly for work outside of regular hours.

Recall to duty

The right to disconnect may influence recall to duty provisions, for example by requiring guidelines and examples of when an employee can be asked to return to work, particularly outside of regular hours.

Broken shifts

The right to disconnect may impact broken shift provisions or provisions requiring work hours to be continuously, this may require consideration on when an employee is considered ‘off work’.

Span of hours

The right to disconnect could interact with existing span of hours provisions, potentially by limiting work communications to within these specified hours.

What is evident from the analysis of the potential interactions between the new right to disconnect term and existing modern award provisions is the potential for greater regulation of things that quite possibly were operating as intended and were not in need of further regulation.

As is apparent from the initial analysis set out in the President’s Statement, the devil will be in the detail in terms of what the right ultimately entails – a task that has been delegated to the Fair Work Commission to fill in the details within the space of six months, along with all the other activities that the Commission is also required to undertake during that same period (Modern Award Review 2023/24 and a similar variation of modern awards to include a new delegates rights clause too!).

It seems, there is no right to disconnect, insofar as the Fair Work Commission is concerned.

Moreover, the Commission is provided with jurisdiction to make orders (either for employees to stop refusing contact or for employers to be prevented from either requiring contact by the employee or from taking action against an employee who has refused contact).

Despite the existing protections in the Fair Work Act 2009 (Cth) relating to reasonable additional hours (and the circumstances in which an employee may refuse to work unreasonable additional hours), the inclusion of a statutory Right to Disconnect suggests that employers and workers cannot be trusted to work out an appropriate way to structure their working relationships and arrangements. So, they will now become heavily regulated instead.

The President of the Fair Work Commission’s Statement of 12 March 2024 can be accessed here.

Note: The final timetable for the variation of modern awards to include a “right to disconnect” term was published by the Fair Work Commission in a further Statement dated 26 March 2024. The draft award terms will be published by the Fair Work Commission for comment by 15 July 2024.


Steven Amendola
+61 3 9958 9606
[email protected]
Jane Silcock
Executive Counsel – Knowledge
+61 2 9169 8419
[email protected]