The Federal Parliament has recently passed legislation that will provide employees with a legal right to disconnect. This change comes alongside several amendments made to the Fair Work Act 2009 (Cth) as part of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Cth). Tim Eyears and Matt Krog explain further.

Overview of the Right to Disconnect

Once the law commences, employees can refuse to monitor, read or respond to contact (or attempted contact) from an employer or a third party outside of working hours, unless the refusal is unreasonable. What constitutes ‘contact’ is not currently defined. However, it is likely to be given a broader interpretation, applying to calls, emails, texts, Microsoft Teams messages and any other employer contact that may be considered unreasonable.

Unreasonable Refusal

The right to disconnect will apply unless an employee’s refusal is unreasonable. What is considered unreasonable will depend upon several non-exhaustive factors, including:

1. the reason for the contact or attempted contact;
2. how the contact is made and the level of disruption it causes the employee;
3. the extent to which an employee’s remuneration compensates them to remain available to perform work during the period in which the contact is made or work additional hours outside their ordinary hours of work;
4. the nature of the employee’s role and their level of responsibility; and
5. the employee’s personal circumstances (including family or caring responsibilities).

It is noted that the compensation of an employee for remaining available to perform work outside their ordinary hours may include non-monetary compensation.

A Workplace Right

The right to disconnect will be considered a ‘workplace right’ under part 3-1 of the FW Act. This means that an employer will be prohibited from taking adverse action (e.g. dismissing, demoting, injuring an employee in their employment, etc) against an employee for exercising their right to disconnect. Should an employer take such an action, this may form the basis of a general protections claim against them. 

Resolving Disputes

The amendments also provide a framework for the resolution of disputes arising between employers and employees over the right to disconnect. If a dispute arises, there is an expectation that the parties will first attempt to resolve the matter at a workplace level. However, if a resolution cannot be reached, either party may apply to the Fair Work Commission (FWC) to oversee the dispute and make an order. The FWC may order that:

1. an employee stops refusing contact with the employer (i.e. they need to respond outside of ordinary working hours);
2. an employer does not take disciplinary action against the employee for refusing contact from the employer; or
3. an employer ceases contact with the employee outside of ordinary working hours. 

Next Steps for Employers

The new laws will take effect from 26 August 2024 and 26 August 2025 for small businesses. To prepare for these changes, employers should:

1. review employment contracts and existing policies to ensure they align with the rights and dispute resolution processes prescribed by these changes;
2. ensure managers are trained and aware of these changes and their impact on when employees may be contacted outside of ordinary working hours; and
3. update recruitment policies and procedures to clarify expectations around out-of-hours employee contact.