Draft “right to disconnect” model award term released for comment

The Fair Work Commission (Commission) is required to include a “right to disconnect” term in all modern awards by 26 August 2024.[1]

Following consultation with interested parties, the Commission has today released its draft model term and accompanying statement (using the Business Equipment Award 2020 to model the draft), and is available to access here.

The Commission is also required to publish written guidelines about the operation of the right to disconnect. In its statement today, the Commission indicated that those guidelines are not currently intended to be published prior to 26 August 2024, with the Commission noting:

“The Commission considers that it will be in a better position to make guidelines once it has dealt with at least some disputes concerning the operation of the right since this will allow it to have some understanding of the practical issues for which guidance may be required.”[2]

Interested parties are invited to provide their comment on the draft term and the Commission’s views about the release of the guidelines, by 12pm (AEST) on Thursday, 1 August 2024.

What does this mean for employers?

A “right to disconnect” term will be included in all modern awards by 26 August 2024. Final determinations varying modern awards will be published by the Commission by 23 August 2024.

The term will take effect:

• From 26 August 2024 for non-small business employers and their employees;
• From 26 August 2025 for small business employers (as defined under the Fair Work Act 2009 (Cth)) and their employees.[3]

Written guidelines concerning the right to disconnect will likely be published after the term is already in operation.

Employers should review their relevant modern award(s) on or immediately before 26 August 2024 to ensure that they understand their obligations concerning the new right to disconnect.

EMA Legal is available to assist with all employer enquiries about the right to disconnect.

[1] As a result of the passing of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024

[2] Variation of modern awards to include a right to disconnect term [2024] FWC 1818, at [11].

[3] The term will apply to a small business employer from 26 August 2025 if that employer is a small business employer on 26 August 2024: see Schedule 1, Part 16, cl 111D of the Fair Work Act 2009 (Cth).