Right to Disconnect not so Restrictive
11 July 2024The right to disconnect, which is intended to be about employees having the right to refuse to answer their employer’s calls, emails etc out of hours, will be set out in section 333M of the Fair Work Act.
This new provision comes into effect on 26 August 2024, or 26 August 2025 in the case of small businesses.
This will no doubt be of interest to NZ Unions as well, but in practice these provisions will not be as restrictive as may have first appeared.
The FWC has used the Business Equipment Award, to inform its draft term, noting other awards can be amended after 26 August if need be.
An employer must not directly or indirectly prevent an employee from exercising their right to disconnect, however this doesn't mean employers are prohibited from requiring an employee to monitor, read or respond to contact or attempted contact outside of hours where:
- the employee is being paid a stand-by allowance;
- the employer's contact is to notify them they are required to attend or perform work; and
- the contact is in accordance with the usual arrangements for such notification.
The Business Equipment Award already contains such provisions.
It also doesn't prevent employers from contacting or attempting to contact an employee out of hours to notify them of an emergency roster change or a recall to work.
The Commission won’t be releasing guidelines for the right to disconnect prior to its implementation. It is contemplated that interested parties may make applications after 26 August 2024 to vary the right to disconnect term in individual modern awards to address the specific circumstances of particular industries and occupations.
The Commission's final determination varying modern awards will be published on 23 August 2024.