Right to disconnect: What early childhood centres need to know

A new employee ‘right to disconnect’ is taking effect for many early childhood education and care (ECEC) providers from 26 August 2024, and a year later for ‘small’ centres. It is therefore crucial for early childhood education leaders to prepare now by understanding the changes, providing training to team leaders and reviewing current work practices, staff contracts, policies and internal procedures. 

Fair Work Commission guidance and variation to the Children’s Services Award 2010

The ‘right to disconnect’ will be inserted into the Fair Work Act 2009 (Cth) (FW Act). Under the reforms, the Fair Work Commission (FWC) is required to vary all modern awards, including the Children’s Services Award 2010, to include a right to disconnect term. As part of its consultation process, the FWC has issued a draft ‘Employee right to disconnect’ modern award term and an audit of the modern awards. 

The FWC is also required to issue guidelines on the operation of the right to disconnect. It has indicated that it will not release these guidelines until it has dealt with some disputes under the reforms, allowing for a better understanding of the practical issues that may arise. 

What are the rules of the new ‘right to disconnect’?

The ‘right to disconnect’ provides employees with a protected right to refuse to respond to work communications outside of their normal working hours, including reading or responding to emails, texts or other attempted contact from their employer. The legal right also extends to contact from third parties, such as a parent, guardian or supplier, about work matters outside of their normal work hours. 

As the right to disconnect is a protected form of workplace right under Part 3-1 of the FW Act, employers must be cautious to avoid taking any adverse action against an employee for exercising, or attempting to exercise, this right. 

If an ECEC provider has an enterprise agreement that covers the particular employee and which includes a more favourable right to disconnect term than the one in the FW Act, the enterprise agreement term will apply.  

What are the exceptions? 

The right to disconnect will not apply if an employee’s refusal to respond is ‘unreasonable’. 

Factors used to assess whether a refusal is unreasonable include the employee’s role and level of responsibility, the reason for contact, how contact is made, the level of disruption resulting from contact, and whether the employee is adequately compensated for being available or for working additional hours outside their usual hours of employment. Any relevant personal circumstances will also be considered, for example, family or caring responsibilities.

How can disputes under the right to disconnect be resolved?

If an employee and employer cannot resolve a dispute at the workplace level regarding the application of the right to disconnect, either party can bring the issue before the FWC, which has new powers to hear such disputes. The FWC will then have authority to deal with the dispute, which can include determining to issue an order to prevent:

• an employer from taking disciplinary action against an employee because of the employee refusing contact outside of their normal working hours
• an employer from contacting an employee beyond their designated work hours
• an employee from unreasonably refusing contact from their employer.

Challenges for ECECs

Navigating these changes may present various challenges for underprepared ECEC providers. The FWC has indicated various provisions in modern awards may be impacted by inserting a right to disconnect term into the modern awards. Potentially impacted clauses include those related to emergency roster changes, on call, recall to duty or remain on standby requirements in readiness to return to duty; requirements to contact or provide notice to employees; spans of hours, including ordinary hours of work and shift work; and classifications that include managerial or supervisory responsibilities.

For example, the Children’s Services Award 2010 currently contains a clause that waives the requirement to provide seven days’ notice of a roster change in emergency situations (such as a classroom fire). The draft modern award clause aims to ensure that the right to disconnect term will not interfere with the operation of this waiver.

Next steps for ECECs

The right to disconnect has the potential to result in an increase in uncertainty at the workplace level and, where it is not dealt with, disputes. To protect themselves, there are critical steps an early childhood education centre can take. 

This includes understanding the changes, reviewing current work practices, reviewing employment contracts and position descriptions, particularly clauses related to salary, remuneration and duties, to determine if employees are remunerated based on the expectation that they are contactable outside of regular working hours. 

Additionally, leadership teams should review existing policies and procedures concerning employees being contactable for last-minute shift changes during non-working hours.

Training to managers would also be beneficial to ensure they understand the legal impact of these changes and do not treat employees adversely if the employee seeks to exercise their right to disconnect.

It is also important to prepare workplace policies regarding expectations for contact outside of hours, the process for making such contact, how such contact is permitted to be made and sharing information relevant to employees about the right to disconnect.

If you have any questions about the changes or need assistance with reviewing your centre’s work policies, please contact Holding Redlich Partner Megan Cant here.