On 26 February 2024, several amendments to the Fair Work Act 2009 (Cth) (FW Act) received assent under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Amending Act) with the ‘right to disconnect’ provisions coming into effect for employers (other than small business employers) from 26 August 2024.
Key Takeaway Points
- New ‘Right to Disconnect’ provisions come into effect for employers (other than small business employers) from 26 August 2024.
- While receiving considerable media attention, these are not new laws and should not cause undue angst for employers.
- Employers need to ensure they are observing and complying with the right to disconnect and provide employees with accurate information about their rights and responsibilities.
- Clear communication and adequate training will be key to ensuring both employers and employees understand what constitutes reasonable expectations and are supported in managing their rights and responsibilities.
Whilst receiving considerable media attention, the right to disconnect is essentially not new law and should not cause undue angst for employers who understand that appropriate time away from work is essential for greatest productivity whilst attending work.
To that end, the ‘right to disconnect’ seeks to recognise the changing work dynamics whereby workers are increasingly able to perform work in locations other than within the traditional ‘four walls’ and to establish a regime that ensures all workers do not feel pressured to respond to work demands outside of normal work hours or additional reasonable hours.
What is the ‘Right to Disconnect’?
The Amending Act provides that the ‘right to disconnect’ allows an employee to “refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable”.
Circumstances to be considered whether an employee’s refusal is unreasonable should include:
- the reason for the contact or attempted contact;
- how the contact or 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 (which includes non-monetary compensation):
- to 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 hours of work;
- 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).
Depending on industry and occupation, employees may also be expected to respond outside of normal hours where additional hours of work are reasonable in the circumstances.
What are reasonable additional hours?
Whilst employees cannot be required or requested to work hours that are not ‘reasonable additional hours’ in accordance with the National Employment Standards (NES) of the FW Act, what constitutes reasonable additional hours varies from industry to industry and will helpfully be particularised in greater detail within modern awards, providing guidance to employers.
Nonetheless, a good working definition should include whether a requirement to work additional hours has the potential to create an unacceptable psychosocial risk to an employee’s health and safety.
With an increasing move towards remote working models, it is easier for an employer to remain in contact with their employees outside of their normal work hours and the employee’s right to disconnect during reasonable additional hours should be assessed under similar criteria as to the right to disconnect outside normal works hours. Nonetheless, exceptions exist including for:
- emergencies or urgent situations;
- agreed-upon overtime or on on-call arrangements; and
- situations where the employee has explicitly consented to being contacted.
In the event of a dispute
Should there be disagreement between employer and employee as to what constitutes ‘reasonable contact’ and whether an employee can rely on the right to disconnect to refuse or respond to contact, any dispute should first be dealt with between the employer and employee.
However, if internal dispute resolution is unsuccessful, the parties can apply to the Fair Work Commission (FWC) to make a ‘stop order’ directing:
- the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact, or from taking disciplinary or other action against the employee; or
- the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact; or
- otherwise resolve the dispute in another way.
Employers should also be aware that as of 26 August 2024, the ‘right to disconnect’ is a protected workplace right and is subject to the general protections provisions of the FW Act. To that end, should an employer take adverse action against an employee who seeks to enforce their right to disconnect, the employee can apply to the FWC for remedy under Part 3-1 of the FW Act which can include monetary compensation for the employee and civil penalties against the employer.
Key takeaways for employers
To ensure they are observing and complying with the right to disconnect, the conscientious employer will provide their employees with accurate information about the right to disconnect including:
- providing employees with up-to-date Fair Work Information Statements available on the Fair Work website (www.fwc.gov.au); and
- conduct training for all workplace participants outlining expectations.
For employers, expectations might include management:
- being responsible for ensuring that their team members are aware of and understand their right to disconnect;
- respecting employees’ right to disconnect and avoid sending work-related communications outside of ordinary hours unless it is reasonable to do so;
- leading by example by disconnecting from work outside of their ordinary hours; and
- working with their team members to establish clear expectations around work-related communications outside of ordinary hours.
Key takeaways for employees
For employees, expectations might include:
- being available and responsive to work-related communications during ordinary work hours;
- being available to engage with work-related communications outside of ordinary work hours where it is reasonable to do so;
- setting clear boundaries around their work and personal time and to communicate these boundaries to their colleagues and managers; and
- being responsible for managing their work-related communications outside of ordinary hours in a way that supports their right to disconnect.
If you would like to discuss the potential impact of the right to disconnect provisions, or would like advice on your workplace obligations generally, please contact one of our team.
