Legislative background
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Amending Act) introduces the new ‘right to disconnect’ into the Fair Work Act 2009 (Cth) (FW Act).
The right to disconnect provisions commence on 26 August 2024 but do not apply to small business employers (businesses with fewer than 15 employees) until 26 August 2025.
The Amending Act also requires modern awards to include a ‘right to disconnect’ term.
The Right to Disconnect
The right to disconnect permits an employee to refuse to ‘monitor, read, or respond to contact, or attempted contact’ from their employer (or a work related third party) outside the employee’s working hours, unless the refusal is unreasonable.
The right does not prohibit employers from sending an email outside of office hours but will protect employees from disciplinary action for reasonably ignoring such emails.
The right extends to work contact by related third parties, meaning an employee may reasonably refuse contact form parties including prospective or current clients, consumers, or suppliers.
What is ‘contact’?
Contact is defined broadly and will include emails, calls, messages, and other communication platforms used for work.
Reasonable refusal
The right to disconnect only applies to ‘reasonably refused’ out of work contact. Section 333M(3) of the FW Act provides a non-exhaustive list of considerations for determining whether a refusal is reasonable, including:
- The reason for the contact;
- How the contact is made;
- The level of disruption the contact causes the employee;
- The extent to which the employee is compensated (including non-monetary compensation) for remaining available during this period, or for working additional hours;
- The nature of the employee’s role;
- The employee’s level of responsibility; and
- The employee’s personal circumstances (including family or caring responsibilities).
Disputes
Section 333N(2) requires parties to attempt to resolve disputes about the right to disconnect at the workplace level first.
If discussions at a workplace level do not resolve a dispute, either party may apply to the Fair Work Commission for an order under s 333P. These are orders for an employee to stop refusing contact or orders for an employer to stop taking certain actions towards the employee because they have exercised their right to disconnect. Once an order is in place, civil remedies are available against a party contravening a term of the order.
A ‘workplace right’
The right to disconnect is a workplace right under the FW Act general protection provisions. Under s 340(1) of the FW Act, an employer must not take any adverse action against an employee because the employee has, exercises or proposes to exercise a workplace right. An employer could be liable for a civil penalty if they discipline an employee for reasonably exercising their right to disconnect, even in the absence of a s 333P order.
How might employers prepare for the new regime?
Ahead of the new right to disconnect, employers may wish to:
- Consider the current pattern of ‘out of working hours’ communications with employees;
- Consider and whether working hours are clearly delineated;
- Review the extent employees are currently compensated for work outside normal working hours. This may include a review of position descriptions, and employment contracts;
- Provide training and information to management to ensure they are aware of the changes and do not treat employees adversely due to reasonable refusals to monitor and respond to afterhours contacts;
- Prepare updated workplace policies and procedures concerning work contact outside agreed hours; and
- As this this new right has received significant media attention, it is possible employees are aware of the right but do not fully understand its application and the issue may require discussion with employees.
