From 26 August 2024, the Fair Work Act will give eligible workers the formal right to disconnect from work and reasonably refuse to respond to contact, or attempted contact, from their employer (or relevant third-party) outside of their normal work hours.
Let’s have a close look at the new regulations and what they will mean for your business.
What is the right to disconnect?
The 'right to disconnect' is a legal right for employees to reasonably refuse to monitor, read or respond to contact (or attempted contact) - e.g. email, text messages - outside of ordinary working hours.
Workers will also be able to raise a complaint about unreasonable out-of-hours contact with their employer.
The onus is on the employee and employer to resolve any issue at workplace level, but employees will be able to apply to the Fair Work Commission (FWC) for an order to stop the employer’s contact if the matter is unresolved.
Employers who fail to adhere to a stop order could be fined.
Contact from an employer will be considered reasonable if:
- The worker is paid to be on-call or their job description requires it.
- The contact is during an emergency or to change conditions of work, e.g. location or hours.
Does it mean that employers cannot contact employees outside of their working hours?
The new regulations do not prevent employers from contacting their employees, but encourage employers and employees to set expectations about contact out of work hours and support employees in ‘switching-off’ from work.
Employees will have the right to refuse contact outside their working hours unless that refusal is unreasonable.
When will a refusal by an employee be unreasonable?
An employee’s refusal to monitor, read or respond to contact or attempted contact (disconnection) will be unreasonable if the contact or attempted contact is required by law.
If the contact or attempted contact is not required by law, these factors must be taken into account:
- The reason for the contact or attempted contact.
- The method of contact or attempted contact.
- The level of disruption the contact or attempted contact causes the employee.
- The extent to which the employee is compensated (including with non-monetary benefits):
- to remain available to perform work during the period in which the contact or attempted 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.
- The employee’s personal circumstances (including family or caring responsibilities).
Other matters may also be considered.
When is the right to disconnect effective?
- From 26 August 2024 for non-small business employers (more than 15 employees).
- From 26 August 2025 for small business employers (fewer than 15 employees).
By 26 August 2024, specific rules will also be added to all modern awards to explain how the new right to disconnect will apply to different industries and occupations.
How will non-compliance and disputes be handled?
In the first instance, the employer and employee should attempt to resolve any disputes about an employee’s right to disconnect.
If that isn’t possible, employees or employers can lodge a dispute with the Fair Work Commission.
The FWC can either make a stop order (i.e. stopping an employee from continuing to unreasonably refuse contact or stopping an employer from continuing to contact an employee where they reasonably refuse contact or taking action against them for refusing) and/or deal with the dispute in other ways, e.g. by holding a conference.
The right to disconnect will also be a workplace right under general protections, similar to an employee’s right to take time off if they are sick. These laws are protected rights all employees receive under the Fair Work Act.
An employer cannot take adverse action against an employee because of their rights at work, including the right to disconnect. Adverse action may include taking disciplinary action against an employee.
Employees can also lodge disputes about general protections with the FWC.
What action should employers take?
We recommend that employers:
- Evaluate the current nature of after-hours contact with employees. Consider whether it's reasonable and if there is an expectation of a response. For example, an email sent after hours may not require an immediate reply, whereas specific requests for responses outside regular hours do.
- Assess whether employees are compensated in a manner that reflects any expectation.
- If an employee is compensated to perform/respond out of hours, review whether their employment contract and job description should be updated to clearly outline the expectation of after-hours work and clarify that they are compensated for doing so.
- Consider implementing policies on working outside of normal hours and provide training to managers to ensure they are aware of these changes and are not inappropriately contacting employees outside of hours.
