By Dr. Laura Sowden, Partner and Annabel Cheung, Lawyer

On 12 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023 (the Bill) was passed in both Houses.  The inclusion of the right to disconnect in part 8 of the Bill was part of a political negotiation to ensure passage of the rest of the Bill through the Senate.  The Bill makes significant amendments to the Fair Work Act 2009 (Cth) (the FW Act) including a statutory right for employees to disconnect outside of work hours.

Why has this been passed

In October 2022, the Senate Select Committee on Work and Care’s October 2022 Interim Report considered the phenomenon of “availability creep”.

Availability creep happens because with technology employees feel that they should always be readily available for their employers at a moment’s notice.

In March 2023, the Committee’s Final Report made the recommendation of legislating a right to disconnect under the National Employment Standards. In 2023 two private members bills were put forward proposing a right to disconnect.

What is the right to disconnect

Employees will have a new right to refuse to monitor, read or respond to contact from an employer outside of their usual working hours, unless the refusal is unreasonable.

Who does it affect

Employers, third parties and of course employees.

This new right also extends to contact from a third party (e.g. customers or clients) outside of the employee’s working hours.

Can employers contact employees

Yes. It is not a general prohibition on employers contacting employees after hours. It is a prohibition on expecting or demanding a response.

Employees may be entitled to ignore calls and emails from their employers without penalty.

For example, a manager who sends an email after hours to an employee will not be penalised for doing so, and an employee who chooses not to respond because the email was not received during the paid working time should not be punished for it.

New workplace right

The right to disconnect will also be a workplace right under the general protection provisions of the FW Act. Employees will be able to use those provisions and claim that suffered detriment for refusing to respond to contact.

When is this happening

This will come into effect:

• For small businesses 12 months after Royal Assent.
• For everyone else 6 months after the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 receives Royal Assent.

What makes a refusal unreasonable?

The Bill provides factors which will determine whether an employee’s refusal to be contacted is reasonable

These are:

• Reason – The reason for contacting the employee;
• Nature Of Contact – How the contact was made and the extent of disruption the contact caused the employee;
• Pay – The extent that the employee is compensated:
  • to remain available to perform work during the period in which the contact is made; or
  • for working additional hours outside the employee’s ordinary hours of work
• Role – The nature of the employee’s role and their level of responsibility; and
• Personal Situation – The employee’s personal circumstances (such as family or caring responsibilities).

What happens if there is a dispute regarding the right to disconnect?

At first instance, the parties should attempt to resolve any dispute at the workplace level.

If the dispute remains unresolved, the employee can apply to the Fair Work Commission for a “stop order” requiring the employer to cease unreasonable out of hours contact or to halt certain actions. The “stop order” is similar to that issued for workplace bullying or harassment for example.

An employer can apply for the FWC to otherwise resolve the dispute.

If the Fair Work Commission is satisfied that the employee’s refusal is reasonable, orders can be made to:

(a) prevent the employer from taking disciplinary or other action against the employee; and/or

(B) prevent the employer from continuing to require the employee to monitor, read or respond to out-of-hours contact.

There are financial penalties for a breach of a “stop order”.

For employers to consider

Review:

• Working hours
• Communication practices and methods
• Employment contracts
• Workplace policies

Tips:

• Implementing a policy regarding communication and work hours will place employers in a position to ensure that any out-of-hours contact is addressed, what is reasonable in its view is clarified and communication.
• Reviewing employment contracts to address span of hours worked and reasonable additional hours will clarify the working hours during which contact needs a response.
• If employers need to communicate outside of hours and you think an employee doesn’t need to reply, be clear you do not expect a response until hours of work commence.