1
Fair Work Act 2009
Sch 1, clause 111C—FWC to vary certain modern awards
Variation of modern awards to include a right to disconnect term
(AM2024/14)
JUSTICE HATCHER, PRESIDENT MELBOURNE, 12 MARCH 2024
Variation of modern awards to include a right to disconnect term – Fair Work Legislation
Amendment (Closing Loopholes No. 2) Act 2024 – commencing process to develop a right to
disconnect award term and guidelines – draft timetable for comment.
Introduction
[1] Following the passage of the Fair Work Legislation Amendment (Closing Loopholes
No. 2) Act 2024 (Closing Loopholes Act (No 2)), the Fair Work Act 2009 (Cth) (FW Act) is
amended effective from 26 August 2024 to include provisions concerning a ‘right to
disconnect’.
[2] These amendments mandate the inclusion of a right to disconnect term within all modern
awards which are to be effective from 26 August 2024 or, in the case of small businesses and
their employees, 26 August 2025.1 The amendments also stipulate that the Fair Work
Commission must make written guidelines about the operation of new Division 6—Employee
right to disconnect which is to be included in Part 2-9—Other Terms and Conditions of
Employment of the FW Act. There is no legislative deadline for the making of the guidelines.
However, given that the Commission intends to consult on both the guidelines and the model
term, I have decided to progress the two processes together. This statement outlines the
Commission’s approach to implementing these legislative changes and proposes a draft
timetable for stakeholder consultation and engagement regarding the development of a right to
disconnect term and the required guidelines.
Overview of changes
[3] The amendments add a new Division 6—Employee right to disconnect to Part 2-9 of
the FW Act, establishing a statutory right for employees to disconnect from work
communications outside of normal working hours. This includes provisions for dispute
resolution related to exercising this right and empowers the Commission to issue stop orders or
otherwise deal with a dispute about the right. Additionally, all modern awards are required to
incorporate a right to disconnect term by 26 August 2024, and the Commission is tasked with
developing written guidelines about their operation.
[2024] FWC 649
STATEMENT
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc649.pdf
[2024] FWC 649
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[4] The key changes can be summarised as follows:
• A definition of the right to disconnect term has been inserted into the FW Act
Dictionary (s 12). The definition provides that a right to disconnect term is a term
in a modern award that provides for the exercise of an employee’s rights set out in
subsections 333M(1) and (2).
• New section 149F requires modern awards to include a right to disconnect term.
• New section 333M prescribes a protected right for eligible employees to
‘disconnect’. The new section provides that an employee may refuse to monitor,
read or respond to contact, or attempted contact, from an employer (or third party
relating to their work) outside of the employee’s working hours unless the refusal
is unreasonable. This right is a workplace right within the meaning of Part 3-1,
General Protections of the FW Act.
• New section 333N sets out the procedures and requirements that apply to the
resolution of a dispute about the right to disconnect. Both employees and
employers can seek the assistance of the Commission to deal with a dispute.
• New section 333P empowers the Commission to make orders to prevent an
employee from unreasonably refusing contact, or to prevent an employer from
taking action against an employee because the employee has reasonably refused
contact but the employer believes the refusal is unreasonable, or to prevent an
employer from continuing to require contact by the employee.
• New section s 333Q makes civil remedies available for contravention of an order
under s 333P.
• New section s 333W requires the Commission to make written guidelines about
the operation of Division 6.
[5] The new sections 333M, 333N and 333W inserted by the Closing Loopholes Act (No
2) are set out in full below:
333M Employee right to disconnect
(1) 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.
(2) An employee may refuse to monitor, read or respond to contact, or attempted contact,
from a third party if the contact or attempted contact relates to their work and is outside
of the employee’s working hours unless the refusal is unreasonable.
(3) Without limiting the matters that may be taken into account in determining whether a
refusal is unreasonable for the purposes of subsections (1) and (2), the following must be
taken into account:
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(a) the reason for the contact or attempted contact;
(b) how the contact or attempted contact is made and the level of disruption the contact
or attempted contact causes the employee;
(c) the extent to which the employee is compensated:
(i) to remain available to perform work during the period in which the contact
or attempted contact is made; or
(ii) for working additional hours outside of the employee’s ordinary hours of
work;
(d) the nature of the employee’s role and the employee’s level of responsibility;
(e) the employee’s personal circumstances (including family or caring
responsibilities).
Note: For the purposes of paragraph (c), the extent to which an employee is
compensated includes any non-monetary compensation.
(4) For the avoidance of doubt, each of the rights in subsections (1) and (2) is a workplace
right within the meaning of Part 3-1.
Note: The general protections provisions in Part 3-1 also prohibit the taking of
adverse action by an employer against an employee because of a workplace right of the
employee under this Division.
(5) For the avoidance of doubt, an employee’s refusal to monitor, read or respond to contact,
or attempted contact, from their employer, or from a third party if the contact or attempted
contact relates to their work, will be unreasonable if the contact or attempted contact is
required under a law of the Commonwealth, a State or a Territory.
(6) For the avoidance of doubt, if:
(a) an employee is covered by an enterprise agreement; and
(b) the enterprise agreement includes a right to disconnect term that is more favourable
to the employee than the rights in subsections (1) and (2);
the right to disconnect term in the agreement continues to apply to the employee.
333N Disputes about the employee right to disconnect
(1) This section applies if:
(a) there is a dispute between an employer and an employee because the employee has
refused to monitor, read or respond to contact or attempted contact under
subsection 333M(1) or (2) and:
(i) the employer reasonably believes that the refusal is unreasonable; or
(ii) the employer has asserted that the refusal is unreasonable and the employee
reasonably believes the refusal is not unreasonable; or
(b) there is another dispute between the employer and the employee about the
operation of section 333M.
Workplace level discussions
(2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the
workplace level by discussions between the parties.
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Application to FWC to deal with dispute
(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may
apply for the FWC to do either or both of the following:
(a) make an order under section 333P (orders to stop refusing contact or to stop taking
certain actions);
(b) otherwise deal with the dispute.
Representatives
(4) The employer or employee to the dispute may appoint a person or industrial association
to provide the employer or employee (as the case may be) with support or representation
for the purposes of:
(a) resolving the dispute; or
(b) applying to the FWC to make an order under section 333P or otherwise deal with
the dispute; or
(c) the FWC dealing with the dispute.
Note: A person may be represented by a lawyer or paid agent in a matter before the
FWC only with the permission of the FWC (see section 596).
333W Guidelines
(1) The FWC must make written guidelines in relation to the operation of this Division.
(2) Guidelines made under subsection (1) are not a legislative instrument.
[6] As the right to disconnect provisions were added to the Fair Work Legislation
Amendment (Closing Loopholes No. 2) Bill 2023 by way of a non-Government Senate
amendment, the Explanatory Memorandum does not include any information about the
provisions. The mover of the amendment in the Senate explained that the provisions are
intended to ‘rebuild the boundary around workers’ personal time and create a safeguard for that
time’ and ‘reduce unpaid working time and wage theft’.2
Current modern award terms which may impact the right to disconnect
[7] Staff of the Commission have undertaken an initial analysis of modern award provisions
that may potentially impact on the development of the right to disconnect award term and
accompanying written guidelines. The analysis draws from the recently published discussion
paper on work and care which was prepared and published as part of the Modern Awards
Review 2023-24. The results of the staff analysis are set out at Attachment A to this statement.
Proposed timetable for varying modern awards
[8] There are currently 121 industry and occupational modern awards and a further 34
modern awards that include the Australian Government Industry Award 2016 as well as
enterprise modern awards and state reference public sector modern awards. As discussed above,
https://www.fwc.gov.au/documents/sites/award-review-2023-24/discussion-paper-work-and-care-290123.pdf
https://www.fwc.gov.au/documents/sites/award-review-2023-24/discussion-paper-work-and-care-290123.pdf
[2024] FWC 649
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each of these 155 instruments must be varied to provide for a right to disconnect term by 25
August 2024.
[9] To accommodate this requirement and to ensure thorough stakeholder consultation and
the effective implementation of the right to disconnect term in modern awards, the following
draft timetable is proposed. In preparing the timetable, I have considered the draft timetable for
the Annual Wage Review 2023-24, the timetable for the Modern Awards Review 2023-24 and
the timetable for the delegates’ rights term modern award variation matter. As I noted in my
statement about the Closing Loopholes Act (No 2) amendments dated 27 February 2024, a
degree of overlap in the timetables is unavoidable given the strict legislative deadlines.
Proposed draft timetable
Date Proposed consultation
2-3 May 2024 Consultations with peak councils
20 May 2024 Parties to lodge submissions on proposed right to
disconnect term and guidelines, including any award
specific matters and the delayed operation for small
businesses.
3 June 2024 Parties to lodge submissions in reply
17-21 June 2024 Consultation sessions with interested parties
15 July 2024 Draft award terms published by the Commission for
comment
1 August 2024 Comments on draft award terms due
23 August 2024 Final determinations varying modern awards published
26 August 2024 Determinations come into operation (except small
business)
26 August 2025 Determinations come into operation for small business
[10] The proactive approach outlined above in the proposed draft timetable aims to facilitate
a comprehensive and inclusive consultation process, ensuring that all stakeholders have the
opportunity to contribute to the development and implementation of the right to disconnect term
in modern awards.
[11] Any comments on the draft proposed timetable should be sent to awards@fwc.gov.au
by 12:00 pm (AEDT) on Wednesday, 20 March 2024.
[12] I propose to issue a further statement in the week commencing 25 March 2024 either
confirming or adjusting the timetable based on the comments received. Regarding the making
of written guidelines, I propose to issue further information after considering submissions from
interested parties (due on 20 May 2024 under the draft timetable).
https://www.fwc.gov.au/hearings-decisions/major-cases/annual-wage-reviews/annual-wage-review-2023-24/timetable-annual-wage
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb179.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc241.pdf
https://www.fwc.gov.au/documents/consultation/presidents-statement-closing-loopholes-no2-royal-assent-2024-02-27.pdf
mailto:awards@fwc.gov.au
[2024] FWC 649
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Allocation to a Full Bench
[13] Once the timetable has been finalised, this matter will be allocated to a Full Bench
consisting of myself, Vice President Asbury, Deputy President O’Neill and Commissioner
McKinnon.
PRESIDENT
THE FAIR WORK FAI COMMISSION THE
[2024] FWC 649
Attachment A — FWC staff analysis of modern award
provisions that may impact on a right to disconnect term
Modern award terms that may impact on a right to disconnect
This document has been prepared by staff of the Fair Work Commission to assist parties in relation
to the variation of modern awards to include a right to disconnect term and the making of
guidelines to support the new term. The document does not represent the concluded view of the
Commission on any issue.
In table 1, Commission staff have identified modern award provisions that may impact on the
development of a new modern award term on a right to disconnect and accompany written
guidelines. The analysis draws from the recently published discussion paper on work and care,
as part of the Modern Awards Review 2023-24, and is intended to serve as a starting point for
discussions with interested parties.
The modern award provisions identified are considered in the context of the newly inserted
section 333M(3) of the Fair Work Act 2009 which sets out when an employee’s refusal to
connect with an employer outside of work hours may be unreasonable. As per section 333M(3),
modern award provisions must contemplate how and why contact is made, the level of
disruption it causes, how employees are compensated to remain available, the nature of
employee’s role and their personal circumstances.
https://www.fwc.gov.au/documents/sites/award-review-2023-24/discussion-paper-work-and-care-290123.pdf
https://www.fwc.gov.au/hearings-decisions/major-cases/modern-awards-review-2023-24
[2024] FWC 649
Table 1 – Existing modern awards terms that may impact a new right to disconnect term
Modern award
provision
Detail of Modern Award Provision Potential relationship between the modern award provision
and the Right to Disconnect
Overtime
provisions and
rest periods
after overtime
Overtime provisions are designed to compensate
employees who perform work outside their ordinary or
rostered hours. The payment of overtime ultimately
depends on unique interactions between ordinary or
guaranteed hours, the span of hours, days worked, type of
employment, rest periods between shifts and TOIL
provisions.
The introduction of the RTD may impact overtime provisions
by potentially limiting the hours during which an employee is
expected to work or be available for work communications.
Reasonable
additional hours
The Fair Work Act 2009 (Cth) s 62 prohibits an employer
from requiring or requesting an employee to work
unreasonable additional hours. The work and care
discussion paper identified 9 out of 25 modern awards
analysed as including reasonable overtime provisions.
The inclusion of the RTD in modern awards may interact with
‘reasonable additional hours’ as outlined in s 62 of the FW Act
and within specific modern awards. The RTD may necessitate
consideration of what is reasonable in the context of after
hours work and availability.
Minimum
payment periods
Minimum payment terms (also referred to as minimum
engagement terms) may be prescribed to particular
employees. Minimum payment periods vary according to
employment type, role or assignment and specify the
minimum period of time employees can work and the
minimum payments to which they are entitled.
The RTD could impact the interpretation and application of
minimum payment periods, particularly for work outside of
regular hours.
Recall to duty
provisions,
including
minimum
payment periods
When recalled to duty, employees are generally entitled to
overtime rates or minimum payment periods. Some modern
awards refer to this as call-outs, return to duty or call-back
arrangements.
The RTD 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.
On call Some modern awards make specific provision for
employees to be on call and where this happens, employees
are generally paid for being ready to work during times
The RTD may impact ‘on call’ arrangements, for example by
requiring clarification on when an employee must be available
to work outside their normal work hours.
[2024] FWC 649
Table 1 – Existing modern awards terms that may impact a new right to disconnect term
Modern award
provision
Detail of Modern Award Provision Potential relationship between the modern award provision
and the Right to Disconnect
outside their usual shifts, often at short notice. Some
modern awards refer to this as availability for duty or being
on standby. These provisions can include the times when an
employee must be reachable by phone or able to come into
work.
Telephone
allowance*
Some modern awards require an employee to install or
maintain a telephone for the purpose of being on call,
whereby the employer will refund those installation costs
and subsequent charges.
The RTD may impact modern awards which provide for the
payment of a telephone allowance. This interaction may be
particularly relevant when an employee has both personal and
work phones and when and how communication occurs.
Broken shifts or
the requirement
to work
continuously
Some modern awards provide for broken shifts or split
shifts, referring to a shift that is broken into multiple parts
by an unpaid break. Broken shifts can generally be worked
over a maximum span of hours and sometimes only apply to
certain employees.
Some modern awards provide that shifts must be worked
continuously.
The RTD 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 Span of hours or spread of hours refers to the time of day
when employees can be rostered to work their ordinary
hours, generally without attracting additional penalty rates
or overtime.
The RTD could interact with existing span of hours provisions,
potentially by limiting work communications to within these
specified hours.
Maximum daily
hours
The span of hours and maximum daily hours may interact
with and affect overtime rates and other clauses relating to
work, remuneration and penalties.
The RTD could interact with existing maximum daily hours
provisions, potentially by limiting work communications to
within this span of hours.
Averaging of
hours
While all modern awards provide for some flexibility with
mutual agreement, some awards permit standard ordinary
Many awards provide at least one period in which ordinary
hours can be averaged which should be considered in context
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Printed by authority of the Commonwealth Government Printer
PR772278
1 Clause 111D of Schedule 1 to the FW Act provides that the right to disconnect amendments do not apply in relation to an employer that is a small business employer on the day of commencement,
or an employee of that employer, for a period of 12 months beginning on that day.
2 Commonwealth, Parliamentary Debates, Senate, 8 February 2024, at 23 (Senator Barbara Pocock).
Table 1 – Existing modern awards terms that may impact a new right to disconnect term
Modern award
provision
Detail of Modern Award Provision Potential relationship between the modern award provision
and the Right to Disconnect
hours to be worked over an extended period as an
alternative to working a set number of hours each week.
This arrangement is called averaging of hours and is
provided for under Fair Work Act 2009 (Cth) s 63.
of a RTD, specifically employees being provided with
predictable off duty periods.
Changes to
rosters
All modern awards include a model consultation clause
about changes to rosters or hours of work per Fair Work Act
2009 (Cth) s 145A. The model clause requires employers to
consult on proposed changes to the regular roster or
ordinary hours of work of an employee, other than an
employee whose working hours are irregular, sporadic, or
unpredictable. Variations to rosters may occur for several
reasons, such as operational needs of the employer, staff
availability or unforeseen circumstances.
Notice time for changes to rosters varies significantly between
modern awards. Some modern awards may expect employees
to be ‘available’ to connect regarding work during their days off,
leave or rest periods with little notice. Some awards specifically
prohibit employers rostering employees to work outside
nominated available hours other than by agreement.
