On 12 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 passed both Houses. One of the more significant changes under the Bill is the introduction of a “right to disconnect”, which entitles employees to reasonably refuse contact with their employer and others outside of their ordinary working hours.
This Insight explores this new and controversial “right to disconnect”, and its implications for employers.
The Right to Disconnect
The Fair Work Act 2009 (Cth) will be varied to provide employees with an express workplace right to refuse to monitor, read or respond to contact from their employer or third parties (such as clients) outside of their working hours unless the refusal is unreasonable.
In considering whether an employee’s refusal is unreasonable, consideration will need to be given to the following:
- the reason for the contact or the attempted contact;
- how the contact or the attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
- the extent to which the employee is compensated to either remain available to perform work during the period in which the contact or attempted contact is made, or for working additional hours outside of the employee’s ordinary working hours;
- the nature of the employee’s role and the employee’s level of responsibility; and
- the employee’s personal circumstances (including family or caring responsibilities).
Importantly, employers will not be prohibited from, or penalised for, contacting their employees outside of their ordinary working hours. That said, if an employer takes adverse action against an employee because the employee has exercised their “right to disconnect”, this will amount to a contravention of the general protections provisions of the FW Act, and the employer may be penalised accordingly.
The modern awards will be amended to include provisions relating to this “right to disconnect”, and the Fair Work Commission will publish guidelines in relation to the operation of this new workplace right.
Disputes about the Right to Disconnect
If there is a dispute as to whether an employee has properly exercised their “right to disconnect”, the parties to the dispute must first attempt to resolve the dispute at the workplace level by discussing the matter between themselves.
If these discussions do not resolve the dispute, then either party can apply to the FWC for a “stop order”. That is, an employer can apply for an order to stop the unreasonable refusal by the employee, while an employee can apply for an order to stop the unreasonable contact from the employer or to stop the employer from taking certain action, such as disciplinary action. The parties may also apply to the FWC to otherwise deal with the dispute.
What this Means for Employers
The “right to disconnect” will come into effect 6 months after the date that the Bill receives Royal Assent (and at a later date for “small business employers”). As such, employers have time to prepare for these changes by:
- reviewing their employment agreements and policies to ensure these materials are consistent with these new laws (including amending the materials as necessary to make it clear that an employee’s remuneration compensates the employee for after-hours work and conduct);
- ensuring that their management and supervisory teams are aware of their obligations and are appropriately trained to deal with situations where after-hours contact is necessary; and
- otherwise monitoring employees’ after-hours work activity and establishing mechanisms and internal practices (e.g., appropriate rostering arrangements) to ensure compliance with these new laws.
If you have any questions about what this new “right to disconnect” means for you and your business, please contact Addisons’ employment law team.