In this article we will consider how the new "Right to Disconnect" law in Australia impacts employees and employers and what factors both employees and employers need to take into account when communicating outside of work hours.
What is the Right to Disconnect Law?
The enactment of the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 signifies a significant shift in Australia's labour laws. Of particular interest is the addition of a new 'right to disconnect' clause within the Fair Work Act 2009 (Cth), sparking extensive dialogue and debate among stakeholders.
WHAT THE LAW SAYS
The new 'right to disconnect' law will permit an employee to refuse to monitor, read or respond to contact, or attempted contact, from an employer (or from a third party if the contact or attempted contact relates to the employee's work) and is outside of the employee's working hours unless the refusal is unreasonable.
Relevant considerations for determining whether a refusal is unreasonable include but are not limited to:
- the purpose behind the contact or attempted communication;
- the manner in which the contact or attempted communication is initiated and the extent to which it disrupts the employee.
- the level of compensation provided to the employee
- to be on standby for work during the time when the contact or attempted communication is initiated; or
- for working additional hours outside of the employee's ordinary hours of work;
- the employee's position within the organisation and the extent of their duties and accountability;
- the employee's personal situation (including family or caregiving responsibilities).
The new 'right to disconnect' will also constitute a workplace right under the general protections regime. This means that employers will be prohibited from taking adverse action against an employee because an employee reasonably exercises their 'right to disconnect' outside the employees normal working hours.
It should be noted that the new 'right to disconnect' does not block employers from contacting or attempting to contact their employees outside of the employees ordinary working hours.
These new laws will come into effect on 26 August 2025 for small business employers and on 26 August 2024 for non-small business employers.
Right to Disconnect Disputes
The natural consequence of the introduction of this law will be disputes between employers and employees when an employee refuses to monitor, read or respond to contact from an employer (or a third party) outside of the employees normal working hours.
Both employees and employers in these circumstances must seek to resolve this dispute through discussions at the workplace level. If the parties cannot resolve the dispute through discussions between themselves, either party may then apply to the Fair Work Commission ("FWC") to assist in resolving the dispute.
The FWC can then resolve the dispute by issuing a "Stop Order" by application of either the employee or the employer. If a 'Stop Order' is issued in favour of the employer, it can require the employee to refrain from unreasonably ignoring or declining to monitor, read or respond to contact or attempted contact from the employer. Conversely, if the 'Stop Order' is granted on behalf of the employee, it can oblige the employer to discontinue any unreasonable contact with the employee and prevent any adverse actions being taken by the employer towards the employee for exercising their 'right to disconnect.'
WHAT IT MEANS for Employees
The introduction of a 'right to disconnect' should be seen by employees as a legal safeguard that assists employees in disconnecting from some of their obligations and responsibilities outside of their normal hours of work. It is a measure that should help foster a better work life balance for employees and help separate their home life from their work life.
It is important however for employees to be aware that their exercise of the 'right to disconnect' must be reasonable. Considering that the nature of an employee's position and their level of remuneration play a key role in determining the reasonableness of a request, it is worth noting that individuals in senior professional or executive roles, who bear higher responsibilities and receive greater compensation, may find their exercise of the 'right to disconnect' deemed unreasonable more frequently compared to employees in lower-tier positions with lesser pay.
Employees should therefore ensure they grasp the intricacies of the newly introduced 'right to disconnect' law and thoroughly assess how their employment agreements and workplace protocols relate to it.
WHAT IT MEANS for Employers
The implementation of a 'right to disconnect' into law should strongly encourage employers to consider and review all current workplace practices, policies and procedures regarding contacting employees outside of ordinary working hours. This should include:
- evaluating all employment contracts with regard to those parts that deal with communicating with employees outside of ordinary working hours;
- designing and implementing procedures regarding out of hours contact with employees in compliance with 'right to disconnect' legislation;
- providing managers with appropriate training to ensure they understand the new changes and make sure they do not take action against employees who reasonably refuse to be contacted outside of ordinary working hours;
- discussing the new 'right to disconnect' with employees to make sure they are aware of how the new 'right to disconnect' operates;
- re-examining the timeframes provided to clients for completing work in consideration of the new availability of employees to be contacted to perform after-hours work.
takeaways
The practical implications of the 'right to disconnect' will continue to unfold, with employees, employers, and the FWC all playing crucial roles in its implementation. Understanding the full extent of this legislation may take time and present challenges for employers. However, those employers who approach issues arising from employees exercising their 'right to disconnect' with a well-informed perspective will navigate this new landscape more effectively than those with an uneducated understanding of the 'right to disconnect'.
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