Right to disconnect: New draft gives clearest picture yet of what businesses should expect

The Fair Work Commission (FWC) has revealed its draft ‘right to disconnect’ clause for modern awards, suggesting the term will reflect changes to the Fair Work Act without additions proposed by the union movement.

Small businesses will need to comply with the right to disconnect from August 26, 2025, but larger workplaces, and the FWC, are preparing for the term’s broader launch on August 26 this year.

In one of the final steps before the right to disconnect sets in, the FWC on Thursday released a draft version of its variation to the modern awards system.

The draft clause, modelled under the Business Equipment Award 2020, hews closely to recent Fair Work Act reforms.

It states that unless it is “unreasonable” to do so, employees may ignore communications from their employer or a related third party outside of working hours.

The clause points to the Fair Work Act, which clarifies what factors must be taken into account when determining if contact is “unreasonable”.

Such factors include the reason for the contact, the disruption it causes, and the extent to which employees are compensated to stay available and contactable outside of ordinary working hours.

Notably, employers are not prevented from contacting employees outside of working hours when:

• They are being paid a relevant stand-by allowance,
• The contact is to alert them of their requirement to attend or perform work,
• The contact is “in accordance with usual arrangements” made in the workplace.

More specifically to the Business Equipment Award 2020, employers are not prevented from contacting employees when:

• There is an emergency roster change,
• They recall a worker under clause 20.4, which provides a minimum of three hours’ worth of overtime pay for any work conducted, even if fewer than three hours of work is performed.

An employee’s refusal to respond could also be considered “unreasonable” if it violates state, territory, or federal law.

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With all of those factors taken into consideration, the draft clause does forbids employers from taking adverse action against workers who exercise their right to disconnect.

In its draft clause, the Fair Work Commission does not appear to have pursued the full suite of changes put forward by the Australian Council of Trade Unions (ACTU).

In its submission to the FWC, the ACTU argued changes to the Fair Work Act should only serve as a starting point for reforms to the award system.

It said the final clause should protect workers from handing over their personal details at all for the purpose of out-of-hours communication.

The clause should clarify providing a laptop or mobile phone does not guarantee on-call access to employees, the ACTU argued.

Industry groups challenged the ACTU’s submission, arguing the term could challenge the operation of small businesses.

Stakeholders will have one final chance to influence the shape of the right to disconnect term, with the FWC fielding formal comments until Thursday, August 1.

The draft term can be found here.

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