Right to disconnect
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 has introduced a new workplace right, known as the “right to disconnect”.
The right to disconnect means that an employee may refuse to monitor, read or respond to work related contact (or attempted contact) outside their working hours. However, employees will not be permitted to refuse if doing so is “unreasonable”.
The right to disconnect covers contact by an employer but also extends to work-related contact (or attempted contact) made by a third party. In other words, an employee may refuse contact from an employer’s clients, customers or suppliers outside of their working hours, unless the refusal is unreasonable.
It is important to note that the right to disconnect does not prohibit employers, or work-related third parties, from making contact with employees outside their working hours. Rather, it gives employees the right to refuse to monitor or respond if it is not unreasonable to do so.
The right to disconnect will be a “protected attribute” for the purposes of the general protections regime in the Fair Work Act 2009 (Cth) (FW Act). This means that an employer will be prohibited from taking adverse action against an employee because they exercise, or seek to exercise, their right to disconnect. Therefore, any action an employer takes or threatens to take in relation to dismissing, demoting or disciplining an employee; changing an employee’s job (for example by cutting their shifts or hours); or discriminating between employees, because they exercise their right to disconnect, is likely to constitute a breach of the FW Act.
What is unreasonable?
There are many jobs where employees might need to monitor, read or respond to out of hours contact. Therefore, a key question will be how to identify when that expectation is reasonable, and when a refusal to comply is unreasonable.
The legislation provides that a number of factors will be relevant, including:
- whether the contact is required under a law;
- the reason for the contact;
- how the contact is made and the level of disruption it causes the employee;
- whether the employee is compensated for remaining available or working additional hours outside of their 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).
Disputes
If a dispute arises because an employee has exercised their right to disconnect, in the first instance the parties must attempt to resolve the dispute at the workplace level.
If that is unsuccessful either party may apply to the Fair Work Commission (Commission) for a “Stop Order”.
A breach by either party of a “Stop Order” may attract civil penalties under the FW Act.
Takeaways for employers
It is likely that the right to disconnect will become prominent in future adverse action claims. Employers will therefore need to take care when making any decisions to dismiss or discipline employees because of a refusal to monitor or respond to contact outside of their working hours.
We recommend that in light of the impending changes, employers begin to review their existing work practices and provide internal training to management and supervisors about the right to disconnect and how it is likely to impact their business.
Employers should consider whether the nature of their operation requires employees to be contactable outside of their working hours, and if so, whether those employees are adequately compensated. This assessment will involve considering the employer’s business as well as each employee’s role and level of responsibility.
Where relevant, employment contracts and internal policy documents should be updated to acknowledge the new right. If applicable, employees should also be advised that their remuneration includes compensation for them to remain contactable outside of their working hours.
The Commission is currently in the process of drafting a right to disconnect term to be included in modern awards. The draft term published by the Commission provides for additional clauses to be added to awards which contain standby allowances, provisions allowing for emergency roster changes and/or recall-to-work provisions. This is to ensure the award term is appropriate for the relevant industry or occupation, where out of hours contact for such reasons is already recognised as necessary. Employers should review the relevant award(s) once they have been amended to include the right to disconnect term to avoid non-compliance.
If you have any questions about the new right to disconnect and how to protect your business, please get in touch with our Workplace Relations & Safety team
This article was written by Maggie Feuerherdt, Solicitor and reviewed by Clare Raimondo, Partner.
