Redefining the Boundaries of Work – Employees’ Right to Disconnect

On 12 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (the Bill) passed both houses of Federal Parliament. As has been widely discussed, a key feature of the Bill is the introduction of a right to disconnect in the Fair Work Act 2009 (Cth) (FW Act).

Under the right to disconnect amendments, which will take effect on 26 August 2024 and will only apply to small business employers from 26 August 2025, an employee can refuse to monitor, read or respond to contact, or attempted contact from an employer or third party outside of the employee’s working hours unless the refusal is unreasonable. However, a contact or attempted contact by an employer or third party is exempt where it is required under a law of the Commonwealth, a State or Territory.

In determining whether a refusal is unreasonable, consideration must be given to the following:

• 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 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;
• the employee’s personal circumstances (including family or caring responsibilities).

Resolving Disputes

In the event of a dispute between an employer and employee on the right to disconnect, two tiers of dispute resolution avenues are available. In the first instance, the parties must attempt to resolve the dispute at a workplace level.

If unsuccessful, a party to the dispute may apply to the Fair Work Commission (FWC) to:

• make an order requiring the employee to stop refusing contact; or
• make an order requiring the employer to stop requiring the employee to monitor, read or respond to contact, or to stop taking disciplinary or other action against the employee because the employer believes the refusal is unreasonable; or
• otherwise deal with the dispute.

If the FWC is satisfied that the order for refusal was not unreasonable or vice versa, and there is a need to prevent the continuance of an act, such as an employer contacting an employee repeatedly after hours, the FWC can make any order it considers appropriate (other than a pecuniary amount).

Alternatively, if an application does not solely seek an order to stop refusing contact or to stop taking certain actions, the FWC has scope to deal with the dispute by arbitration, if the parties agree. Contravention of an order by the FWC may incur a civil remedy.

Take Home Messages

These new provisions highlight a major change in Australia’s employment landscape, whereby unless an employee is being compensated for remaining available outside of the employee’s working hours or is required by law, an employee has a right to disconnect.

While these changes will not commence for some time, employers should immediately consider:

• setting policies regarding the reasonable circumstances in which employees may be required to connect while away from work, given the specific circumstances of the employer’s business;
• training managers on their obligations under these amendments;
• considering what technological solutions can be used to facilitate these amendments; and
• assessing whether employees who will continue to be required to connect while away from work will be remunerated accordingly (e.g. by way of an on call allowance).

For more specific information or advice on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.