What employers need to know about the new ‘right to disconnect’ – Employee Rights/Labour Relations

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By amendment to the Fair Work Act (closure of loopholes No. 2) Act 2024, when it receives Royal Assent on 26 February 2024, Australian workers are one step closer to having a codified ‘right to disconnect’ under the Fair Work Act 2009
(Cth) (Law of FW). With the changes set to come into force in the coming months, employers should start preparing by providing training and reviewing contracts, policies and internal procedures to ensure they are effectively navigating this new statutory right.

“Right to disconnect” overview

In essence, the right to disconnect, which will become a protected right under the general protection regime of the FW Act, gives employees the right to refuse to follow, read or respond to contact or attempted contact outside of working hours by their employer. In addition, the right to disconnect will be extended so that employees can refuse to respond to contact or attempted contact outside normal working hours from third parties (eg a client) in connection with work matters. This right applies to any form of communication, including emails, calls, text messages or any work-related messaging platform.

Since the right to disconnect becomes a workplace right under section 3-1 of the Labor Act, an employer may not act against an employee who reasonably refuses contact outside normal working hours.

Jurisdiction of the Fair Work Commission to hear “right to disconnect” disputes.

The Fair Work Commission has jurisdiction to hear disputes relating to the exercise of the right to disconnect.

If a dispute cannot be resolved between an employer and its employee, either party can apply to the Fair Work Commission. In resolving a dispute, the Fair Work Commission may order:

  • prevent the employee from unreasonably refusing contact with the employer

  • prevent the employer from contacting the employee outside of working hours

  • prevent the employer from taking disciplinary action against the employee as a result of the employee refusing contact outside of his normal working hours.

The Fair Work Commission is preparing written guidelines for the operation of the right to disconnect.

Exceptions to the new law

The right to disconnect will not apply in circumstances where the employee’s refusal is considered unreasonable.

Below is a non-exhaustive list of relevant considerations in deciding whether an employee’s refusal to respond to contact by an employer or relevant third party is unreasonable:

  • reason for contact

  • how the contact is going

  • the level of disruption resulting from the contact

  • the extent to which the employee is compensated for remaining available for work during the time contact/attempted contact occurred, or for additional work hours outside of the employee’s normal working hours

  • 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 can be a catalyst for an influx of disputes. To protect themselves and navigate the potential minefield, employers should:

  • review employment contracts and job descriptions, specifically clauses relating to salary, remuneration and duties, to determine whether employees are compensated with the expectation that they can be contacted outside normal business hours

  • review current policies and procedures regarding the ability to contact employees outside of regular business hours

  • provide training to managers to ensure they are aware of the changes and do not treat employees unfavorably if they reasonably refuse out-of-hours contact

  • prepare workplace policies for working outside of the employee’s agreed working hours

  • provide training and information to employees regarding the new right to disconnect.

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

This publication does not address every important topic or change in the law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s particular circumstances. If you are interested in this publication and would like to know more or would like to obtain legal advice regarding your situation, please contact one of the individuals listed.

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