The right to disconnect – what does it actually mean? – Employee Rights/ Labour Relations

The 
Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024
(CLAct2)) ¹ was enacted in February 2024
and one of its many significant elements is provisions conferring
on employees in Australia the legal right to disconnect out of work
hours. In this article we provide an overview of the new right to
disconnect, look at the implications for the workforce generally,
and consider what employers should do to accommodate the new
right.

What is the right to disconnect?

Once the law commences on 26 August 2024, an employee will have
a legal right under the Fair
Work Act 2009 (Cth) (FWA) to refuse to monitor, read or
respond to contact or attempted contact from their employer outside
of their working hours unless the refusal is unreasonable
².

The scope of this right will apply to telephone calls, emails,
text messages, MS Teams messages and any other contact by an
employer after hours that is not reasonable. The legal right to
disconnect will also extend to any contact or attempted contact
from a third party outside of the employee’s working hours that
relates to work matters generally ³.

What is unreasonable refusal?

In determining whether an employee’s refusal is
unreasonable, the following is to be considered:

• The reason for the contact or attempted contact;




• How the contact or attempted contact is made and the level of
  disruption the contact or attempted contact causes the
  employee;




• The extent to which the employee is compensated:
  

  • to remain available to perform work during the period in which
    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) ⁴

Compensation of an employee for remaining available to perform
work outside their ordinary working hours can extend to
non-monetary compensation (including things such as additional time
off, flexible working arrangements, or a tangible reward).

If an employers can establish that the contact or attempted
contact was required under a law of the Commonwealth, a state or a
territory, an employee’s refusal to respond to such
communications will be considered unreasonable ⁵.

In addition, this new right is a “workplace right”
under the FWA so, an employer will also be prohibited from taking
adverse action against an employee who is exercising their right
not to respond to communications from their employer or a third
party outside of their ordinary hours of work ⁶. If
employers proceed with any adverse action, this may give rise to
employees instituting general protections claims against their
employer under the FWA ⁷.

In addition, CLAct2 requires the Fair Work Commission (FWC) to
vary all modern awards to provide for “right to
disconnect” terms that reflect the circumstances of particular
occupations and industries ⁸. Further, the President of
FWC, Justice Hatcher has made a detailed statement about variation
of Modern Awards and generally on the subject of the new right and
the role of FWC in relation to it ⁹.

What if an employee and an employer disagree what is
reasonable refusal?

If a dispute arises, parties must first attempt to resolve the
dispute at a workplace level in discussions between the employee
and employer.

If the dispute cannot be resolved, either party can apply to FWC
to deal with the dispute. The parties may agree to the FWC
arbitrating, or the tribunal may deal with dispute in another way.
The tribunal may also be asked by one or other party to make a
“stop order” under section 333P to:

i. prevent the employee from
continuing to unreasonably refuse to monitor, read or respond to
contact or attempted contract;

ii. prevent the employer from
taking disciplinary action or other action against the employee
because of the employer’s belief that the refusal is
unreasonable; or

iii. prevent the employer from
continuing to require the employee to monitor, read or respond to
contact or attempted contact.

For the employer, the application would be to stop the
unreasonable refusal from the employee. For an employee’s
application, it would be to stop the unreasonable contact from the
employer or to stop the employer from taking certain actions
because of a belief that the employee’s refusal was
unreasonable. FWC must commence to deal with an application under
Section 333P within 14 days of receiving it ¹⁰.

The FWC may make the orders that it considers appropriate (but
not extending to monetary compensation orders) if it satisfied that
there is a risk that if an order is not made, the behaviour will
continue ¹¹. So, the right to apply for such orders is
limited to current employees.

Breaching a stop order in relation to the right to disconnect
may attract civil penalties under the FWA.

What are the implications for the workforce
generally?

The right to disconnect is a statutory recognition that in our
modern age of remote access and flexible working arrangements, it
has to be remembered that staff (and indeed employers) should not
be expected to be available 24/7 – but also that employees
have to accept that their job might require them to be available
outside of the “9 to 5 weekdays” paradigm. It is of
course common sense really, and most employers and employees manage
the situation without any difficulty.

In reality, the new statutory right, while contemplating third
party intervention in situations of dispute, has as its main
purpose ensuring that employers and employees don’t forget that
there has to be a balance between being connected when needed and
disconnected when it is not. And to talk about it if needed.
Indeed, the recent Information Sheet published by the Department of
Employment and Workplace Relations makes the point that the new
right will “encourage employers and employees to talk about
contact out of hours and set expectations that suit the workplace
and the particular role¹².”

What should employers be doing now?

As the legislation will commence soon, employers should
understand how the changes will impact contact with employees
occurring outside of agreed working hours.

To accommodate an employee’s right to disconnect, employers
should:

• if necessary prepare policies regarding use of work technology
  outside of agreed working hours that takes into account the nature
  of the employer’s business and the usual practices in its
  industry;




• provide training for relevant managers to understand the
  practical implications of this new right;




• advise employees about the existence of the new right, any
  changes in employer policy as a result of it, and if necessary, how
  it is envisaged to work in their employment;




• engage in dialogue with employees where needed, such as by
  encouraging employees to schedule any emails and tasks to be
  delivered during agreed working hours wherever possible; and




• Incorporating this new right into training the employer
  provides on health and safety in or in connection with its
  workplace.

What next?

The right to disconnect will commence six months from the date
the Act receives royal assent, which will be 26 August 2024.

Footnotes

¹ Fair Work Legislation Amendment (Closing
Loopholes No.2) Act 2024 (Cth).

² FWA Part 2-9 Division 6.

³ Section 333M (3).

⁴ FWA Section 333P (3).

⁵ Section 333M (5).

⁶ Section 333M (4).

⁷ FWA Part 3-1

⁸ FWA Section 149F.

⁹
“Variation of Modern Awards to include a right to disconnect
term” – Statement of Hatcher J 12 March 2024 [2024] FWC
649

¹⁰ Section 333P (3).

¹¹ Section 333P (2).

¹²
Commonwealth Department of Employment and Workplace Relations
– “Closing Loopholes – Right to
Disconnect”

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.