The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (in force as of 26 February 2024) introduces substantial changes to Australian workplaces. The ‘right to disconnect’ is one such change attracting considerable attention.
The legislation inserts new provisions into the Fair Work Act 2009 giving employees a statutory ‘right to disconnect’, enabling them to ‘switch off’ from certain out-of-hours work-related contact. Consequently, requests to respond to activities such as after-hours texts and weekend calls from employers (or associated parties) may be refused by an employee unless it is unreasonable to do so.
Importantly, a right to disconnect will be expressly included as a ‘workplace right’ within the general protections provisions of the Fair Work Act. These provisions prohibit employers from taking adverse action against an employee due to the employee having, exercising, proposing to exercise, or not exercising a workplace right.
What is a ‘right to disconnect’?
Essentially, employees ‘may refuse to monitor, read or respond to contact or attempted contact’ from their employer or a third party if the contact or attempted contact relates to the employee’s work and is made outside their working hours, unless the refusal is unreasonable. Contact could include various forms of communication, for example, phone calls, emails, texts, and messaging through internal workplace platforms.
The right to disconnect does not prohibit employers from making contact with employees out of hours. Rather, it will inform the circumstances through which such contact should be made and when it will be deemed unreasonable for an employee to refuse to respond.
The provisions apply to national system employees and employers and will commence on 26 August 2024, unless the employer is a small business employer, in which case the provisions will apply from 26 August 2025. All modern awards will be reviewed to include industry-specific rights to disconnect for employees.
What factors determine whether a refusal to respond is unreasonable?
The following factors are not exhaustive, however must be taken into account in determining whether an employee’s refusal to respond is unreasonable:
- The reason for the contact/attempted contact.
- The method of contact/attempted contact and level of disruption caused.
- The extent of compensation (monetary and non-monetary) provided for the employee to be available or working hours outside of their ordinary hours.
- The employee’s role and level of responsibility.
- The employee’s personal circumstances including family and carer responsibilities.
Where the contact or attempted contact is required by law, an employee’s refusal to respond will be deemed unreasonable.
Managing disputes over the right to disconnect
Disputes between employers and employees over the right to disconnect should in the first instance be dealt with at the workplace level. If the parties cannot resolve the dispute, an application may be made to the Fair Work Commission. The Commission is empowered to determine disputes and issue ‘stop orders’ if the matter cannot be resolved at the workplace level. The Commission may:
- order the employee to stop refusing the contact (if the employee’s refusal is deemed unreasonable);
- order the employer to stop taking certain actions (including to cease taking disciplinary action due to an employee’s reasonable refusal); or
- otherwise deal with the dispute.
Either party may appoint a representative to deal with the matter. If appointing a lawyer or paid agent the party must seek permission from the Fair Work Commission.
What steps should employers take?
Employers should ensure that appropriate policies and processes are in place to address the right to disconnect provisions moving forward. Actionable steps might include:
- Discussions between employers and employees to determine reasonable out-of-hours contact and the review of internal processes.
- Review employment contracts and position descriptions to ensure they include expectations on employees’ availability outside of working hours and whether such availability is reflected in remuneration.
- Implement policies to deal with issues raised by employees who wish to exercise the right to disconnect.
- Discussions with clients and other stakeholders to ensure boundaries and expectations regarding out-of-hours contact with employees are set.
For workplaces operating in a global environment with different time zones, special consideration will be required to navigate expectations for employees to participate in out-of-hours meetings, zoom conferences, telephone calls, etc.
As the right to disconnect will be a workplace right, taking certain action against an employee for reasonably refusing to respond to contact outside of working hours could constitute adverse action, and arguably be used to support a breach of general protections claim by an employee.
Conclusion
The right to disconnect will likely play out differently across workplaces and for workers engaged in different roles and sectors. For example, the threshold for an employee to demonstrate that the refusal to respond to out-of-hours contact is reasonable might be higher for professionals or senior executives than, say a junior administrative assistant.
By taking appropriate steps now and engaging in workplace discussions, employers have an opportunity to navigate the provisions effectively.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (02) 5127 5261 or email [email protected].