As of 26 August 2024, national system employees of non-small business employers (mainly employers of 15 or more employees, including in associated companies) have a “right to disconnect”.  This right applies to employees of small business employers (14 or less employees) as of 26 August 2025. 

The Fair Work Commission published a draft of the right insofar as it would apply to the Business Equipment Award 2020 in July 2024.  That draft notes that section 333M of the Fair Work Act provides that unless it is unreasonable to do so, an employee may refuse to monitor, read or respond to contact, or attempted contact from their employer or third parties (relating to their employment) outside of their working hours, and that the section goes on to set out matters to be taken into account in deciding whether the employee’s refusal is reasonable.

The proposed clause provides that the employer must not directly or indirectly prevent an employee from exercising their right to disconnect, but this does not prevent an employer from requiring the employee to monitor, or read or respond to contact outside of working hours where:

  1. The employee is being paid a standby allowance (under the subject award, being the Business Equipment Award 2020), different awards may not have that allowance;
  2. The employer’s contact is to notify the employee that they are required to attend or perform work; and
  3. The employer’s contact is in accordance with the usual arrangements for such notification. 

The proposed clause goes on to suggest that contact is permissible where there is an emergency roster change or a recall to work, under that award. 

As a result, there is some question as to whether it is intended that the employer is prevented from contacting the employee except in certain circumstances, or whether the employer can contact as much as it wants, the right is for the employee to ignore those attempts.  The fact that contact is “permissible” in some circumstances suggests that contact is not permissible in others.

Of course, this was a draft of an award provision, it is unclear what form the right to disconnect will take in respect of each award.

For advice in relating to commercial and business law, including employment, please contact Peter Muller at peterm@qbmlaw.com.au