The “Right to Disconnect” has been one of the Labor government’s most ridiculed IR changes, and one that many people have disregarded as being impactful or bringing about substantial change to their business. But, should we not write this one off just yet?

Will the Fair Work Commission’s decision on Modern Award wording for the Right to Disconnect go too far and destroy necessary staff communications?

There is absolutely no doubt, and nobody can deny that many workers need to be contacted outside normal work hours. We now have layer upon layer of employment legislation and changes that confuses what “normal working hours” even means, and this is all getting out of hand.

What can we expect?

The Labor government’s legislation is already quite clear – that it is up to the employee to refuse the after hours contact, and an employer can then address any refusal if they believe it was unreasonable. But the Fair Work Commission will ultimately decide how this legislation is tailored to fit into Modern Awards.

The HR Cartel’s perspective is, the requirement, discussion and agreement of a person to be contactable outside of work is all about job design, and job design should be safeguarded from government and regulator control, remaining at the workplace level. After all, Modern Awards already provide compensation rules for working outside of ordinary hours.

Further, our Modern Award system is only supposed to be a “safety net”, but with more than 25 new or amended laws brought about by the government since December 2022, we’re seeing the overreach take hold, and the government expanding its control over how jobs can be designed in any workplace in the country.

The Albanese government only introduced a right to disconnect to appease the Greens political party in return for their preferences at elections, and now, the Union movement has found a new political toy to play with, and is using the right to disconnect to keep their relentless war against employers fuelled and firing – and they want employers punished for even attempting to contact people outside of hours.

Though, some unreasonableness was removed (surprisingly) from the Bill that brought about this dilemma, when Labor dropped the actual prohibition on employers reaching out after hours, which would have been an absolute disaster.

Why is prohibition on contact a disaster?

A Right to Disconnect sounds harmless and nice, until you sit down and consider how society works, what services people need to be safe, happy and healthy, and how heavily humans rely on each other to remain flexible.

Plumbers and electricians must respond to urgent domestic situations, mechanics are called out to get broken down vehicles and people out of danger, energy workers attend to power failures which can result in fatalities, medical staff save lives by remaining on call, police are relied upon to respond to urgent matters, almost every sector has some kind of risk that requires certain people to answer the call when needed.

For these circumstances, Modern Awards or other industrial instruments already provide for payment terms and conditions– and no business can lawfully remunerate their people less than these minimum standards of pay.

So, what then, is the Fair Work Commission going to possibly draft that won’t further encroach on workplace level job design when the Modern Award system already accounts for (anecdotally) 90% of the scenarios where after hours work or contact is required?

The Fair Work Commission will release draft wording on July 15, 2024, and finalise Modern Award clauses by August 23, 2024. For smaller businesses with fewer employees, the changes will be delayed by 12 months, not impacting them until August 2025.

Are you becoming confused with the Right to Disconnect, or any of the countless other laws and amendments impacting Australian workplaces?

Reach out to our team on 1300 138 211 or contact us here.