The new right to disconnect for employees: are you ready?
21 August 2024
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 amended the Fair Work Act 2009 (Cth) to include a new right to disconnect for employees.
In brief, the right to disconnect allows employees to refuse to monitor, read or respond to contact from their employer or third parties (such as customers, clients or suppliers) outside their working hours, unless their refusal is unreasonable. Although the term "contact" is not defined, it no doubt includes all the usual modes of communication like emails, phone calls, text messages or WhatsApp messages.
"Working hours" is also not defined, but it is a different term to the Fair Work Act's 38 "ordinary hours" each week. Sensibly approached, we think working hours are those ordinary hours plus the reasonable additional hours contemplated by the Act. Expectations about working hours and the requirements of a role may be set by employment contracts, position descriptions, awards and enterprise agreements, and employment policies and practices.
The right to disconnect does not prohibit employers from contacting employees outside of work hours. The right is, however, a "workplace right" for the purposes of the general protections provisions of the Fair Work Act 2009. This means that employers must not take adverse action against an employee (such as dismissing or taking disciplinary action against them) because they exercise their right to refuse to monitor, read or respond to out of hours contact.
Yes, all national system employees will have a right to disconnect. However, the nature of an employee's role and the employee's level of responsibility will be relevant in determining whether a refusal to respond to out of hours contact is unreasonable.
Employees of non-small business employers will have a right to disconnect from Monday, 26 August 2024. The new provisions will not apply to small business employers and employees until 26 August 2025.
Modern awards will also be varied with effect from 26 August 2024 to include a term that provides for the exercise of an employee's right to disconnect. The Fair Work Commission (FWC) intends to publish final determinations varying all modern awards by Friday 23 August 2024. The terms will not apply to small business employers until 26 August 2025.
Employers should also be aware that, where an applicable enterprise agreement provides for a right to disconnect that is more favourable than the Act, then that term continues to apply.
Under the new provisions, the following factors must be taken into account in assessing whether a refusal to respond is unreasonable:
Other factors may also be relevant. These may include, for example, the terms of an employee's employment contract, the nature of the employer's business, and whether, in particular circumstances, an employer provided sufficient notice to an employee of the requirement to respond to out of hours contact.
The FWC is required to make guidelines about the new right to disconnect, and these guidelines will no doubt assist both employers and employees to better understand when out of hours contact may be considered unreasonable. In a recent Statement, the President of the Commission indicated that the Commission does not intend to make any guidelines until it has dealt with at least some disputes concerning the right's operation. However, the Commission has released some guidance on its website this week.
The FWC has power to deal with disputes over the right to disconnect, for example, by issuing 'stop' orders to the employer or the employee. Further information about these powers can be found here.
Authors: Jennie Mansfield, Partner; Andrea Motbey, Counsel; Jacqueline Massey, Senior Associate and Gabriella Lubrano, Lawyer.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.
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