In brief: The "right to disconnect" under the Fair Work Act 2009 (Cth) (Act) requires schools to carefully evaluate and set reasonable expectations around out-of-hours work for teachers. While allowing flexibility for legitimate activities like camps and sports, schools must also respect teachers' ability to disconnect from work demands during personal time. The application of the right to disconnect has been raised by the Independent Schools Association with the FWC, urging a different 'switch off' standard for teachers.
 
As this reform comes into effect in August 2024, schools need to start consulting with their staff regarding how the reform will be implemented. Clear policies balancing operational needs and work-life balance will be crucial moving forward.
 
We explore some key considerations for schools, below.
 
In February 2024, the Federal Government passed the second tranche of amendments to the Act including the well-publicised "right to disconnect" contained in the new section 333M of the Act. Adam Foster, Partner in our Melbourne office, covered this in his 14 February 2024 article. See here.
 
In an education sector context, the introduction of the 'right to disconnect' presents some unique challenges for schools. On one hand, schools have legitimate operational needs that may require teachers to work outside of normal school hours, such as supervising school camps, sports activities, and extra-curricular programs.
 
Teacher unions argue their members should not be "permanently on call" and need to be able to disconnect from work demands during their personal time.
 
There are some key considerations for schools when considering the 'Right to Disconnect' under the Act:

  • Reasonable Expectations: Schools will need to carefully evaluate what constitutes reasonable out-of-hours expectations for their teaching staff based on factors like roles, responsibilities, and compensation. For example, a principal or head of department with an annualised salary may have different reasonable expectations than a classroom teacher paid standard award rates.

  • Co-Curricular Activities: Many private schools want flexibility to have teachers available for camps, overseas trips, weekend sports supervision and other activities integral to the broader education experience they provide. Clear policies will be needed around reasonable notice, compensation, and alternate staffing arrangements.

  • Parent/Student Communication: With parents and students able to contact teachers directly out-of-hours via email and messaging, schools should implement strict protocols around appropriate communication channels and response time expectations to protect teachers' personal time.

  • Work-Life Balance: At its core, the right to disconnect aims to promote better work-life balance for employees like teachers who face out-of-hours work demands. Schools should embrace this principle and limit out-of-hours work when absolutely necessary and unavoidable.

  • Dispute Resolution: If disagreements arise between teachers and the school around what constitutes unreasonable out-of-hours contact, they should try to resolve it internally at first instance. If it is unable to be resolved, the Fair Work Commission (FWC) has developed a dispute resolution process which may be utilised. The FWC considers factors like urgency, compensation, roles and personal circumstances.

 As case law emerges, we will be provided further guidance on what steps a school can take to strike the balance between operational requirements and minimising out-of-hours contact.
 
Proactive communication, updated policies, and adequate staffing and compensation provisions will all be key for schools moving forward.
 
Now is the time to start your consultation regarding how the right to disconnect will be implemented in your school. We can assists with proforma policies to assist you with your consultation processes.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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