The right to disconnect – what does it actually mean?
Published on April 12, 2024 by Peter Punch
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (CLAct2)) [1] was enacted in February 2024 and one of its many significant elements is provisions conferring on employees in Australia the legal right to disconnect out of work hours. In this article we provide an overview of the new right to disconnect, look at the implications for the workforce generally, and consider what employers should do to accommodate the new right.
What is the right to disconnect?
Once the law commences on 26 August 2024, an employee will have a legal right under the Fair Work Act 2009 (Cth) (FWA) to refuse to monitor, read or respond to contact or attempted contact from their employer outside of their working hours unless the refusal is unreasonable [2].
The scope of this right will apply to telephone calls, emails, text messages, MS Teams messages and any other contact by an employer after hours that is not reasonable. The legal right to disconnect will also extend to any contact or attempted contact from a third party outside of the employee’s working hours that relates to work matters generally [3].
What is unreasonable refusal?
In determining whether an employee’s refusal is unreasonable, the following is to be considered:
- 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:
- to remain available to perform work during the period in which 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;
- The employee’s personal circumstances (including family or caring responsibilities) [4]
Compensation of an employee for remaining available to perform work outside their ordinary working hours can extend to non-monetary compensation (including things such as additional time off, flexible working arrangements, or a tangible reward).
If an employers can establish that the contact or attempted contact was required under a law of the Commonwealth, a state or a territory, an employee’s refusal to respond to such communications will be considered unreasonable [5].
In addition, this new right is a “workplace right” under the FWA so, an employer will also be prohibited from taking adverse action against an employee who is exercising their right not to respond to communications from their employer or a third party outside of their ordinary hours of work [6]. If employers proceed with any adverse action, this may give rise to employees instituting general protections claims against their employer under the FWA [7].
In addition, CLAct2 requires the Fair Work Commission (FWC) to vary all modern awards to provide for “right to disconnect” terms that reflect the circumstances of particular occupations and industries [8]. Further, the President of FWC, Justice Hatcher has made a detailed statement about variation of Modern Awards and generally on the subject of the new right and the role of FWC in relation to it [9].
What if an employee and an employer disagree what is reasonable refusal?
If a dispute arises, parties must first attempt to resolve the dispute at a workplace level in discussions between the employee and employer.
If the dispute cannot be resolved, either party can apply to FWC to deal with the dispute. The parties may agree to the FWC arbitrating, or the tribunal may deal with dispute in another way. The tribunal may also be asked by one or other party to make a “stop order” under section 333P to:
i. prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contract;
ii. prevent the employer from taking disciplinary action or other action against the employee because of the employer’s belief that the refusal is unreasonable; or
iii. prevent the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.
For the employer, the application would be to stop the unreasonable refusal from the employee. For an employee’s application, it would be to stop the unreasonable contact from the employer or to stop the employer from taking certain actions because of a belief that the employee’s refusal was unreasonable. FWC must commence to deal with an application under Section 333P within 14 days of receiving it [10].
The FWC may make the orders that it considers appropriate (but not extending to monetary compensation orders) if it satisfied that there is a risk that if an order is not made, the behaviour will continue [11]. So, the right to apply for such orders is limited to current employees.
Breaching a stop order in relation to the right to disconnect may attract civil penalties under the FWA.
What are the implications for the workforce generally?
The right to disconnect is a statutory recognition that in our modern age of remote access and flexible working arrangements, it has to be remembered that staff (and indeed employers) should not be expected to be available 24/7 – but also that employees have to accept that their job might require them to be available outside of the “9 to 5 weekdays” paradigm. It is of course common sense really, and most employers and employees manage the situation without any difficulty.
In reality, the new statutory right, while contemplating third party intervention in situations of dispute, has as its main purpose ensuring that employers and employees don’t forget that there has to be a balance between being connected when needed and disconnected when it is not. And to talk about it if needed. Indeed, the recent Information Sheet published by the Department of Employment and Workplace Relations makes the point that the new right will “encourage employers and employees to talk about contact out of hours and set expectations that suit the workplace and the particular role[12].”
What should employers be doing now?
As the legislation will commence soon, employers should understand how the changes will impact contact with employees occurring outside of agreed working hours.
To accommodate an employee’s right to disconnect, employers should:
- if necessary prepare policies regarding use of work technology outside of agreed working hours that takes into account the nature of the employer’s business and the usual practices in its industry;
- provide training for relevant managers to understand the practical implications of this new right;
- advise employees about the existence of the new right, any changes in employer policy as a result of it, and if necessary, how it is envisaged to work in their employment;
- engage in dialogue with employees where needed, such as by encouraging employees to schedule any emails and tasks to be delivered during agreed working hours wherever possible; and
- Incorporating this new right into training the employer provides on health and safety in or in connection with its workplace.
What next?
The right to disconnect will commence six months from the date the Act receives royal assent, which will be 26 August 2024.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.
[1] Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth).
[2] FWA Part 2-9 Division 6.
[3] Section 333M (3).
[4] FWA Section 333P (3).
[5] Section 333M (5).
[6] Section 333M (4).
[7] FWA Part 3-1
[8] FWA Section 149F.
[10] Section 333P (3).
[11] Section 333P (2).
