The “right to disconnect” from modern workplaces

The right to disconnect, as contained in Part 8 of the  Fair Work Amendment (Closing Loopholes No. 2) Bill (Bill), gives employees the right to refuse contact from their employers (or related parties) outside of their working hours, unless the refusal is unreasonable.  The changes in Part 8 amend various sections of the Fair Work Act 2009 (Cth) (Act) and come in response to increasing concerns about psycho-social hazards in the workplace including stress and overwork.^[1]

The right to disconnect provisions

The Bill is set to introduce the right to disconnect in section 333M(1) and (2) of the Act.  It states that employees have the right to:

“(1) refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.

 (2) refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.“^[2]

This amendment allows employees to decline communication with their employer or related entities outside of working hours, provided the refusal is not unreasonable.  Amended section 333M(3) of the Act will include a non-exhaustive list of factors to consider when determining the reasonableness of a refusal, including:

“(a) the purpose of the contact;

(b) the method and disruption caused by the contact;

(c) compensation for the employee;

(d) the employee’s role and responsibilities; and

(e) the employee’s personal circumstances, such as family or caregiving responsibilities.”

These changes will come into effect on:

• 26 August 2024 for non-small business employers; and
• 26 August 2025 for small business employers.^[3]

Consequently, any business with more than fifteen (15) employees will need to comply with the new regulations by 26 August 2024, while small businesses with less than fifteen (15) employees will have an additional year to implement the required adjustments.

What happens when disputes regarding “reasonableness” occur?

In the event of a dispute about reasonableness, the parties are initially encouraged to resolve the dispute at a workplace level through discussion.  However, if discussions fail to reach a resolution, either party can make an application to the Fair Work Commission under section 333N(3) to have the matter resolved.

Under the proposed implementation of section 333N(3) to the Act, the Fair Work Commission would have the authority to:

• make a stop order under section 333P, requiring the employee to stop refusing contact or stop taking certain actions; or
• otherwise, deal with the situation.^[4]

Takeaways

• Employers need to be aware of the right to disconnect laws and should take steps to ensure that they ‘establish clear boundaries’ to prevent excessive work-related demands after work.
• The right to disconnect provisions commences on 26 August 2024 for businesses with more than fifteen (15) employees, and on 26 August 2026 for business with less than fifteen (15) employees.

Links and further references

Legislation

Fair Work Amendment (Closing Loopholes No. 2) Bill

Fair Work Act 2009 (Cth)

Further information about employment law for employers

If you need advice on how changes to the Fair Work Act affect your business, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1]     University of New South Wales, ‘Right to Disconnect: Will it work?  And what does it mean?’ (Newsroom, 3 March 2024) https://www.unsw.edu.au/newsroom/news/2024/03/right-to-disconnect–will-it-work–and-what-does-it-mean—#:~:text=Australia’s%20new%20legal%20right%20to,outside%20of%20designated%20working%20hours., accessed [1 May 2024]; Parliament of Australia, ‘Treasury Laws Amendment (Making Sure Multinationals Pay Their Fair Share of Tax in Australia and Other Measures) Bill 2018’ (Parliamentary Business) https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2324a/24bd052 (accessed 2 May 2024).

[2]     Fair Work Amendment (Closing Loopholes No. 2) Bill.

[3]     Fair Work Ombudsman, ‘Right to Disconnect’ (About Us) https://www.fairwork.gov.au/about-us/workplace-laws/legislation-changes/closing-loopholes/right-to-disconnect (accessed 2 May 2024).

[4] Fair Work Amendment (Closing Loopholes No. 2) Bill s 333N(3).

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