What is the ‘Right to Disconnect’ and how does it effect my business?

: Jessica McGregor; 26 June 2024

Have you ever called an employee while they have been on holiday? Maybe you have an employee who regularly works on the weekend when they aren’t scheduled to. Have you had a client who demands 24/7 access to your key employees?

If any of these situations are familiar to you then you need to inform yourself of the upcoming changes to the Fair Work Act 2009 (Cth) (the Act). These changes grant employees a right to disconnect from work outside their scheduled hours and will come into effect from the 26 August 2024.

In Short

When will it come into effect & Who will be effected?
Key dates:
- 26 August 2024 – for non-small business employers (more than 15 employees)
- 26 August 2025 – for small business employers (less than 15 employees)

What is it? – ‘a right to disconnect’ from work outside of an employee’s scheduled hours
Where is the right contained? – regulated by the Fair Work Act 2009 (Cth) and contained in Modern Awards
Why should you be aware of it? – the right is a ‘workplace right’ and allows employees to seek protections from the Fair Work Commission if you are breaching or adversely affecting their workplace right.

A Workplace Right

The right to disconnect is a workplace right under Part 3-1 of the Act.¹ This Part contains General Protections for employees. As a workplace right, employees are protected from employers taking or threatening to take adverse action against an employee due to their enforcement of the entitlement to a right to disconnect. Adverse action typically includes the dismissal of an employee, altering the position of the employee to their detriment or discriminating against the employee, but can also include:

reducing the level of responsibility of the employee;
creating a hostile work environment;
failing to hire or promote a worker; or
altering an employee’s roster or reducing their hours.

¹ _{Ibid s 333M(4).}

Can an Employee Refuse to be Contacted?

The law does not prevent an employer from contacting their employees when necessary. It does not stop employees from contacting each other, including across time zones. What the right to disconnect does is enable and empower employees to refuse to monitor, read or respond to contact, or attempted contact, outside of working hours, unless the refusal is unreasonable.² This includes contact from employers and extends to any contact from third parties including clients, suppliers and other stakeholders.

² _{Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) s 333M(1)(the Amending Act).}

What is Unreasonable?

Key to the right is whether the refusal is unreasonable. The Act sets out factors to guide the interpretation of ‘unreasonable’.

These include:

the reason for the contact or attempted contact;
how the contact is made and the level of disruption it causes the employee;
whether the employee is being compensated to remain available or for working additional hours outside of their scheduled hours;
the nature of the employee’s role and their level of responsibility;
the employee’s personal circumstances (such as family or caring responsibilities).

It is important to note that this list is not exhaustive. Other factors may be taken into account when considering the reasonableness of the refusal to respond to contact.

Factors such as patterns of behaviour, evidence of conversations with the employee and whether the contact is required under a law (in which case refusal would be unreasonable) will likely be considered if relevant.

Dispute Resolution

If an employee refuses to monitor, read or respond to contact, and the employer believes the refusal to be unreasonable and has communicated this to the employee, then a dispute exists between the parties. In the first instance, all disputes between employers and employees must be attempted to be resolved at the workplace level. If no resolution is possible either may apply to the Fair Work Commission (FWC). The FWC will deal with the dispute within 14 days of the application by making an order under section 333P of the Amending Act, dismissing the application or dealing with it in some other manner.

The FWC may make the following stop orders:

where an employee has unreasonably refused contact - to prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact;
where the employee’s refusal was reasonable and a risk exists that the employer will take disciplinary or other action against them - to prevent the employer from taking that action; or
where the employee’s refusal was reasonable and a risk exists that the employer will continue to request that they monitor, read or respond to contact – to prevent the employer from continuing to require this.

The FWC will dismiss applications that are frivolous, vexatious or that will interfere with Australia’s defence, national security or covert or international operations. If the FWC thinks it appropriate, it may also refer the dispute to mediation or conciliation. Alternatively, it may make a recommendation or express an opinion on the matter.

Consequences

If the FWC makes an order, you must comply with it. There are civil penalties attached to this, which may result in a fine amounting to $9,288.00 if you are found to be in breach of an order.

What Should Your Business Do to Get Ready?

If you are a business that employs more than 15 people at any time, you will need to prepare for these changes now.

Be ‘in the know’ - get familiar with the new law and the key dates;
Prepare - review your employment contracts, policies and procedures to ensure that you are compliant with all legislation;
Communicate - begin conversations with key employees to discuss your expectations and theirs regarding contact outside of work hours and be sure to document these conversations;
Seek advice – if you are unsure about the application of this law on your business or if your business documents meet current requirements, get in contact with our business team to discuss your concerns.

Enterprise Legal’s dedicated Business Law team can provide you with the advice required to give you confidence in navigating these new laws.

KNOWLEDGE CENTRE

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