With the digital age blurring the lines between work and personal life comes the introduction of the new right to disconnect. The new right included in amendments to the Fair Work Act 2009 allows an employee to refuse contact or attempted contact from their employer or a third party such as a customer, supplier or client outside of work hours. Complying with this right is likely to shake up workplace dynamics, and navigating the correct path will be challenging but necessary. Most employers need to start taking steps in preparation as the right starts on 26 August 2024. Small businesses have until 26 August 2025.
What is the right to disconnect?
An employee may refuse to monitor, read or respond to contact, or attempted contact from their employer or a third party outside of their regular working hours, unless such refusal is unreasonable. Forms of contact may include calls, texts, emails, and any other forms of messaging platforms (e.g., Teams, social media etc.) and presumably personal contact such as attending the employee’s home. The right to refuse to respond to contact or attempted contact from a third party must relate to their work. It doesn’t extend to social contact, which in itself raises other ethical considerations.
The right to disconnect is a workplace right protected under the General Protections of the Fair Work Act 2009 meaning an employer is prohibited from taking any adverse action (e.g. dismissal or warnings or prejudices their employment in any way) if an employee exercises this right.
The Fair Work Commission may also include or approve a right to disconnect in an award or enterprise agreement that is more favourable to the employee than the right under the Act.
What is an unreasonable refusal?
The right to refuse depends entirely on whether the refusal is unreasonable. Without limiting the matters that may be taken into account, the following factors must be taken into account in deciding whether the refusal is unreasonable:
- The reason for the contact or attempted contact.
- The method of contact or attempted contact and the level of disruption caused to the employee.
- Compensation for work outside normal hours (including non-monetary)
- Nature of the employee’s role and level of responsibility.
- Personal circumstances, such as family or caring responsibilities (Note: this is also a protected attribute under the FWA)
Disputes about the right to disconnect
The Act provides a dispute resolution process for disagreements between employers and employees regarding the right to disconnect.
Initially, the employer and employee must attempt to resolve the disputes at the workplace level through discussions. If unresolved, either party can refer the matter to the Fair Work Commission (FWC) to make an order or otherwise deal with the dispute. The FWC imay issue orders for the employee to cease refusal of contact or for the employer to cease specific actions, such as contacting the employee or taking disciplinary measures against them for non-engagement. If the Commission makes an order, contravention of the order could result in a civil penalty of up to $18,780 per contravention.
Managing contact with employees outside of work hours
The right to disconnect doesn’t prohibit employers from contacting employees outside regular hours but necessitates a reconsideration of operations and communication with your employees.
As the FWC and courts navigate the implementation of the right to disconnect, several considerations arise:
- Deciding the amount and nature of ‘reasonable additional hours’ of work under the National Employment Standards.
- Complying with work health and safety obligations, including psychosocial hazards related to workload management and workplace communication.
- Adhering to anti-discrimination laws, notably regarding family and caregiving responsibilities.
- Addressing overtime entitlements concerning time spent engaging or refusing to engage with out-of-hours contact.
Furthermore, anticipating an uptick in general protections claims employers must be prepared to handle disputes through the new mechanism and potentially face additional challenges under general protections disputes.
What are your next steps?
The right to disconnect will come into effect on August 26th, 2024, for non-small business employers and on August 26th, 2025, for small businesses. Employers should proactively prepare for the implementation of the Right to Disconnect by:
- Reviewing employment contracts to ensure compliance.
- Developing or updating policies on out-of-hours contact.
- Clarifying expectations for out-of-hours communication in recruitment policies.
- Establishing communication protocols and expectations management processes.
- Make it clear that out-of-hours contact is likely to occur in both contracts and position descriptions (especially for employees in senior positions)
Employers need to adapt to the new legislation by revising policies, updating contracts, and fostering a culture that respects employees’ right to disconnect outside of working hours.