What changed or was decided

The Fair Work Commission (FWC) issued a decision confirming that casual employees have the same right to disconnect from work as permanent employees, provided they are not actively performing work. The case arose from a dispute where an employer sought to contact a casual employee outside of ordinary hours, arguing that the casual nature of the engagement meant the employee could be contacted at any time. The Commission rejected this argument, stating that the right to disconnect under the Fair Work Act 2009 applies across all employment types. The decision reinforces that “ordinary hours” for a casual are determined by the pattern of work agreed upon or established by custom, and that contact outside those hours may constitute a breach of the National Employment Standards unless reasonably agreed. The Commission also clarified that the right is not absolute; employers may still contact employees in genuine emergencies or where the employee has previously agreed to be available. However, blanket policies allowing contact at any time are inconsistent with the legislation. The ruling provides clearer guidance for both employers and employees on when the right is triggered and what constitutes a reasonable exception.

Key facts

• The dispute involved a casual employee who was contacted by their employer outside of designated working hours.
• The employer claimed that because the employee was casual, they had no enforceable right to disconnect.
• The Fair Work Commission found that the right to disconnect applies to casual employees as well as permanent employees.
• “Ordinary hours” for a casual employee are determined by the actual pattern of work performed or by established custom, not merely by the label of casual employment.
• The Commission ruled that casual employees are entitled to the same protections under the National Employment Standards regarding disconnecting from work.
• The decision stated that employers may contact employees outside ordinary hours in genuine emergencies or where the employee has previously agreed to be available, but such contact cannot be the default.
• The ruling aims to provide clarity and consistency across different employment types regarding the right to disconnect.

Law or legal principle

The right to disconnect is a provision within the National Employment Standards (NES) of the Fair Work Act 2009. It entitles employees to refuse to monitor, contact, or respond to communication from their employer outside of ordinary hours, unless the employee is a casual employee performing work, the contact is made in an emergency, or the employee has previously agreed to be contacted. A core element of the scheme is that “ordinary hours” must be determined by the actual pattern of work performed or by established custom, rather than by the formal classification of the employment (such as casual labelling). The Fair Work Commission has consistently held that the NES applies across all employment types, and that a casual employee’s entitlement is not diminished simply because of the casual nature of their engagement. Employers may not rely on a “blanket policy” of constant availability; any contact outside agreed hours must fall within the statutory exceptions.

Decision or outcome

The Fair Work Commission (FWC) determined that the applicant, a casual employee, was entitled to the same right to disconnect protections as a permanent employee. The Commission found that the employer’s practice of contacting the employee outside designated working hours breached the National Employment Standards. It rejected the employer’s submission that casual status removed the right to disconnect, affirming that the right applies regardless of employment type. The FWC clarified that “ordinary hours” for the casual employee were defined by the pattern of work actually performed and any established custom, not merely by the label of casual employment. While the Commission acknowledged that employers may contact employees in genuine emergencies or where prior agreement exists, it ruled that such contact cannot be the default or routine expectation. The decision resulted in a finding that the employer had contravened the NES, providing the employee with a enforceable right to disconnect outside their ordinary hours, and establishing a clear precedent for casual employees across the jurisdiction.

What it means in practice

For casual employees, this decision confirms that the right to disconnect is not reserved for permanent staff. If you are casual, you can reasonably refuse to monitor, contact, or respond to communication from your employer outside of your agreed ordinary hours. “Ordinary hours” are determined by the pattern of work you actually perform or by any established custom in your workplace—not merely by the label of casual employment. Employers cannot rely on a blanket policy of constant availability. While contact is permitted in genuine emergencies or where you have previously agreed to be available, such arrangements cannot be the default expectation. This ruling provides casual workers with a clear, enforceable baseline: you have the same protection from after-hours contact as permanent employees, and employers must respect those boundaries unless a statutory exception applies.

Sources

This section draws on the Fair Work Commission decision reported at austlii.edu.au, which confirmed that casual employees have the same right to disconnect as permanent employees under the National Employment Standards.