What employers need to know about the new ‘right to disconnect’

With the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 receiving Royal Assent on 26 February 2024, Australian employees are one step closer to having a codified ‘right to disconnect’ within the Fair Work Act 2009 (Cth) (FW Act). With the amendments set to come into effect in the coming months, employers should begin to prepare themselves by providing training and reviewing contracts, policies and internal procedures to ensure they are navigating this new legal right effectively.

Overview of the ‘right to disconnect’

In essence, the right to disconnect, which will become a protected right under the general protections’ regime of the FW Act, gives employees the right to refuse to monitor, read or respond to contact or attempted contact outside of work hours from their employer. Further, the right to disconnect will extend to allow employees to refuse to respond to contact or attempted contact outside of ordinary work hours from third parties (e.g. a client) in relation to work matters. This right applies to any form of communication, including emails, calls, texts or any work-related messaging platforms.

Due to the right to disconnect becoming a workplace right under part 3-1 of the FW Act, an employer must not take adverse action against an employee reasonably refusing contact outside ordinary working hours.

Jurisdiction of the Fair Work Commission in hearing ‘right to disconnect’ disputes

The Fair Work Commission holds jurisdiction to hear disputes in relation to the application of the right to disconnect.

If a dispute cannot be resolved between an employer and its employee, either party may apply to the Fair Work Commission. In dealing with the dispute, the Fair Work Commission may make orders to:

prevent an employee from unreasonably refusing contact with their employer
prevent an employer from contacting an employee outside of work hours
prevent an employer from taking disciplinary action against an employee as a result of the employee refusing contact outside of their normal working hours.

The Fair Work Commission is in the process of preparing written guidelines on the operation of the right to disconnect.

Exceptions to the new right

The right to disconnect will not apply to circumstances in which an employee’s refusal is deemed to be unreasonable.

The following is a non-exhaustive list of relevant considerations in determining if an employee’s refusal to respond to contact by an employer or relevant third party is unreasonable:

the reason for contact
how contact is made
the level of disruption resulting from contact
the extent to which an employee is compensated to remain available to work during the period when contact/attempted contact is made or for working additional hours outside the employee’s ordinary hours of employment
the nature of the employee’s role and their level of responsibility
any relevant personal circumstances. For example, family or caring responsibilities.

What should employers do now?

The right to disconnect may be the catalyst for an influx of disputes. To safeguard themselves and navigate the potential minefield, employers should:

review employment contracts and position descriptions, specifically clauses pertaining to salary, remuneration and duties, in order to ascertain if employees are remunerated with an expectation to be contactable outside of normal working hours
review current policies and procedures regarding employees being contactable outside normal working hours
provide training to managers to ensure they are aware of the changes and do not treat employees adversely if they reasonably refuse after-hours contact
prepare workplace policies on working outside an employee’s agreed upon working hours
provide training and information to employees regarding the new right to disconnect.

The right to disconnect will commence on 26 August 2024 for most employers and 26 August 2025 for small businesses.

If you have any questions about the right to disconnect, please get in touch with our national Workplace Relations & Safety team below.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.