Fair Work Commission expands to deal with right to disconnect disputes

The commission, which will insert a right to disconnect term into all 155 modern awards by August 26, 2024, is in the process of expanding its average staffing level by 15 to the equivalent of 417 full-time employees.

On Friday, it issued fact sheets about how the right will operate and what employees and employers can do if they disagree, including if it results in an alleged unfair dismissal, demotion or failure to promote.

The right to disconnect will mean an employee "may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable".

When disputes arise and attempts to resolve them at a workplace level fail, employers and employees will be able apply to the commission for orders to "stop refusing contact or to stop taking certain actions".

The commission can also hold a conference to try to resolve the dispute or, if the parties agree, resolve it by way of arbitration leading to a binding order.

It can dismiss a dispute if it is "frivolous or vexatious", might involve matters relating to Australia's defence, national security or a covert operation, or an international operation.

An implementation report said FWC president, Justice Adam Hatcher, "noted that the new right to disconnect function will require significant case management support to be established prior to implementation".

The commission received a $6.3 million boost in the 2024-25 federal budget, compared with the previous year, to just over $111 million.

It has drafted a model term to be inserted into modern awards detailing the right to disconnect. Consultation about how the wording to be included in specific awards is ongoing.

Unions are seeking award-specific variations they argue are necessary to clarify how the right to disconnect will interact with provisions in awards that apply to particular industries, such as those that have on-call rosters.

Employers are concerned they may be restricted from contacting employees out-of-hours, rather than workers just having the choice not to respond.

Australian Industry Group has asked the commission to keep it simple, arguing it would be "reckless" to make "substantial amendments" to awards.

Australian Council of Trade Unions president Michele O'Neil said employers "have been engaged in scaremongering that the right to disconnect could leave employers vulnerable to legal action".

"Employers want to be able to contact workers outside of working hours, in a range of circumstances, such as asking them about tasks that were not completed during their working hours," she said.

"That is the very type of contact where it may be reasonable for a worker to refuse to respond until they are next back at work."

Justice Hatcher said in a statement earlier this month: "It is contemplated that interested parties may make applications after 26 August 2024 to vary the right to disconnect term in individual modern awards to address the specific circumstances of particular industries and occupations."

Opposition workplace relations spokeswoman Michaelia Cash said it was "not surprising Labor's controversial right to disconnect laws will mean an increased workload for the Fair Work Commission".

"Businesses and their employees are already confused by the laws which will wrap them in further red tape and complexity," Senator Cash said.

"For small businesses, in particular, this bad law will only create more tension in the workplace rather than solve any issue it purports to fix."

For small business employees, the right to disconnect starts on August 26, 2025.

The Coalition has pledged to repeal the legislation if it wins the next federal election.