Changes to the Fair Work Act: Right to Disconnect

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 was passed recently, making several important changes to the Fair Work Act 2009 (the Act). The newest change to the Act is inclusion of a ‘right to disconnect’, specifically a right to disconnect from contact and work outside working hours. It is important to be aware of this incoming change as it may impact your ability to contact your employee’s after-hours in relation to work.

The changes to legislation have been summarised as follows:

What is the right to disconnect?

The right to disconnect basically means that employees have the right to refuse to monitor, read or respond to contact from an employer outside of their ordinary working hours unless the employee’s refusal is ‘unreasonable’. This means that while you can still contact your employees outside their ordinary working hours, employees now have the right to refuse such contact by not responding to calls, texts, emails or other methods of contact.

Please note that the employee’s right to disconnect relates not only to the employer but extends to any third party, which may include colleagues, customers, or clients.

When is an employee’s refusal considered unreasonable?

As noted above, an exception to the right to disconnect is when the employee’s refusal is unreasonable. While no definition of “unreasonable” has been included in the Act, the following factors will be taken into account by the Fair Work Commission (FWC) when determining if an employee’s refusal to respond to contact is unreasonable:

  • the reason for the contact;
  • how the contact is made and the level of disruption the contact causes the employee;
  • the extent to which the employee is compensated:
    • to remain available to perform work during the period in which 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; and
  • the employee’s personal circumstances (including family or caring responsibilities).

The legislation also excludes WHS laws from the scope of this workplace right, which suggests some leeway with regards to contact relating to workplace health and safety.

Can I discipline my employee for refusing work related contact outside of their ordinary hours?

As the right to disconnect will be a workplace right under the Act, any adverse action taken against an employee for enforcing this right can result in the employee making a claim to the FWC under the general protections provisions in the Act.

Employers should be aware that adverse actions could include dismissal (or threat of dismissal), and any other actions that may affect that employee’s position in the workplace (for example, cutting shifts, reducing hours, refusal to promote, or demotion). Employers should therefore be very cautious when raising concerns with performance or conduct if the performance or conduct relates to an employee choosing not to respond to contact outside their working hours, unless an agreement has been made regarding this.

What can my employee do to enforce their right to disconnect?

It is important to be aware of the avenues available to employees to enforce their right to disconnect to ensure that you, as the employer, are prepared for any outcomes around this issue, as lack of preparation may leave you blindsided or incurring costs in terms of time and money.

With the new legislative changes, employees may apply directly to the FWC to make orders against the employer to cease contact with the employee outside working hours. This can only be done after attempts to

resolve the dispute at a workplace level.

Please note that at the time of writing, breaching these orders can result in criminal penalties, however on 15 February 2024 the Government introduced a further bill to confirm that such breaches will not attract criminal penalties.

Does the new legislation provide any avenues to compel an employee to be contactable after working hours?

In addition to the above, the new changes allow the employer to apply to the FWC for orders to compel the employee to stop refusing reasonable contact with the employer, if attempts to resolve the dispute at a workplace level have failed.

The FWC will consider whether the employee’s refusal to respond to contact is unreasonable based on the factors outlined above and it is noted that the FWC will be preparing guidelines about the operation of the right to disconnect, which will likely provide more information on this point.

What can I do?

  • Consider the extent your employees are currently being contacted outside working hours to determine if this new change affects your business.
  • Review employment contracts and workplaces policies to ensure compliance with the new changes.
  • Update contract of employment templates and position descriptions to address ‘right to disconnect. Where there is an expectation of contact or work after hours this should be included and any compensation by way of salary, payment, or benefit) should be included.
  • Prepare workplace policies addressing after-hours contact and the usage of work technology outside working hours. This includes the work from home policy.
  • Note with potential employees from the outset if there will be an expectation of contact and/or work after hours through the recruitment process (including advertisements), position descriptions, contracts of employment, and policies.
  • Training managers in your business to understand their obligations under the new changes and how to manage the need for contact after working hours.

When do these changes come into effect?

These changes will come into effect 6 months after receiving Royal Assent, or 18 months for small business employers.

This summary is a guide only and is not legal advice. If you require clarification on The Fair Work Legislation Amendment, please contact us on 02 9021 9699. 

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