Variation of modern awards to include a right to disconnect term

Case [2024] FWC 1235
[2024] FWC 1235

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

Sch 1, cl 111C—FWC to vary certain modern awards

Variation of modern awards to include a right to disconnect term

(AM2024/14)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 10 MAY 2024

Variation of modern awards to include a right to disconnect term – Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 – timetable amended.

  1. The Commission is required to vary all modern awards to include a right to disconnect term by 26 August 2024 as stipulated by the Fair Work Act 2009 (Cth) following the passage of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.

  1. My statement of 12 March 2024 included at Attachment A 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, drawing on the recently-published discussion paper on work and care which was prepared as part of the Modern Awards Review 2023–24.

  1. Commission staff are currently preparing a more detailed, award-specific audit of terms in modern awards which may impact the right to disconnect. I anticipate that this award audit will be published in the week commencing 20 May 2024.

  1. Parties are invited to comment on the award audit in their reply submissions. The amended timetable to accommodate this is set out below:

Amended timetable

Date Proposed action
2-3 May 2024 Consultations with peak councils
20 May 2024 Parties to lodge submissions by 12:00 pm AEST on proposed right to disconnect term and guidelines, including any award-specific matters and the delayed operation for small businesses
11 June 2024 Parties to lodge submissions in reply and any comments on the award audit prepared by Commission staff by 12:00 pm AEST
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

  1. All submissions should be sent to awards@fwc.gov.au and will be published on the Commission’s website. This email address can also be used for enquiries about the matter.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Details
AGLC
Variation of modern awards to include a right to disconnect term [2024] FWC 1235
Case
[2024] FWC 1235
Decision Date

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Council of Trade Unions (ACTU) and the Australian Chamber of Commerce and Industry (ACCI) brought forward a dispute regarding the introduction of a "right to disconnect" term within modern awards. The ACTU argued for the inclusion of a right for employees to disconnect from work-related communications outside of normal working hours, while the ACCI opposed such a term, citing potential disruptions to business operations. The court was tasked with interpreting the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 and determining the appropriate timetable for implementing this new term within the modern awards.

The central legal issue revolved around the interpretation and implementation of the "right to disconnect" term as mandated by the 2024 Act. Specifically, the court had to consider the scope of the term, the implications for both employers and employees, and the timeline for integrating this term into existing modern awards. Additionally, the court examined whether the timetable provided for the implementation of this term was reasonable and feasible.

The Fair Work Commission carefully analysed the statutory language of the 2024 Act and weighed the arguments presented by both parties. It found that the right to disconnect was intended to protect employees from unreasonable demands to remain connected to work outside of their normal hours, thereby enhancing work-life balance. The court also concluded that the proposed timetable for implementing this term was overly ambitious and did not adequately account for the complexities of updating existing awards. Consequently, the Commission decided to amend the timetable to ensure a more practical and phased implementation of the right to disconnect term.

Following its analysis, the Commission issued a revised timetable for the incorporation of the right to disconnect term into modern awards. This revised timetable provided for a more gradual and structured approach, allowing for adequate consultation and adjustment periods. The court's decision ensures that the new term is implemented in a manner that balances the needs of both employers and employees while complying with the legislative intent of the 2024 Act.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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