Getting Ready for the Right to Disconnect

Introduction

The boundaries between employees’ work and non-work life have been and are shifting. With digital advances and the COVID-19 pandemic, there has been a new focus on hybrid, flexible and remote working arrangements.

However, hybrid or remote work can also encompass challenges. This includes appropriate boundaries for the separation of work and personal life.

Australia has now followed the lead of France and other countries by introducing a ‘right to disconnect’. The aim is to build the boundary around workers' personal time and create safeguards for this.

The new right will broadly give employees the ability to refuse contact from their employer out of hours when reasonable. Businesses should start considering the implications of the right to disconnect now.

What is the right to disconnect?

The right to disconnect is one of many recent workplace changes. It was introduced as a late amendment in the passage of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth).  

A new section 333M in the Fair Work Act 2009 (Cth) (FW Act) will provide a statutory right for employees to disconnect from work communications outside of working hours.

The right does not prohibit employers from contacting employees. Rather, employees may ‘refuse to monitor, read or respond’ to contact or attempted contact from their employer outside of their work hours. This extends to refusing contact with third parties if related to work (such as clients calling after hours).  

Importantly, not all refusals by an employee are captured. The right to disconnect will not apply to ‘unreasonable refusals’. Section 333M(3) sets out a non-exhaustive list of factors that must be taken into account when considering if an employee’s refusal is unreasonable. These include:

• the level of disruption the contact causes the employee;
• the extent the employee is compensated for working or being available to work after hours;
• the employee’s role and responsibility; and
• the employee’s personal circumstances, such as their family responsibilities.

The new right to disconnect will be effective from 26 August 2024 or, in the case of small businesses, 26 August 2025.

All Awards will be required to include a right to disconnect term. Enterprise agreements may also include more favourable terms for employees.

The Commission is in the process of developing written guidelines about the operation of the right to disconnect and consulting on the upcoming Award changes. Employers should keep a close eye on these developments as Award terms could be tailored for their sector.

Dispute resolution pathways  

The right to disconnect will be accompanied by a new dispute resolution pathway.

Disputes must first be attempted to be resolved at the workplace level. If they cannot, employees can apply to the Fair Work Commission (Commission) for an order that their employer stop requiring them to engage in unreasonable out-of-work contact. Orders can also be sought to prevent an employer from taking disciplinary action for the employee’s failure to engage.

On the flip side, employers can also make an application for the Commission. They can seek orders to stop employees from unreasonably refusing out-of-work contact.  

Penalties will apply for non-compliance with the Commission’s orders. The Commission can also deal with disputes in other ways, including arbitration by consent.

Separate from this new dispute pathway, employees can also bring general protections claims for reasonable refusals to monitor, read or respond to employer and other work-related contact outside of their working hours.

What businesses should consider

The right to disconnect hinges on whether an employee's refusal to engage is unreasonable.

For example, when an employee is paid to be on-call or an employer needs to make emergency contact, the right to disconnect is unlikely to apply. In contrast, a lower paid worker could almost certainly refuse repetitive and intrusive phone calls after hours.

There may be many situations where the line of ‘unreasonable refusal’ is unclear. Some jobs require out of hours duties. An example is a senior employee needing to communicate across different time zones to perform transactions.

Employers would be wise to start considering if their contracts and position descriptions appropriately set out role requirements, responsibilities and expectations around working hours. This may go towards the reasonableness of an employee’s refusal. Employers should also consider if employee salaries expressly encompass ‘reasonable additional hours’.

On the performance management front, employers need to be particularly careful in crafting warnings and dismissal letters for unsatisfactory performance. Broad statements such as ‘lack of urgency’, ‘not responding to colleagues in a timely manner’ or ‘unresponsive to client needs’ could result in expensive general protections claims and employee exits. This is because statements of this nature open the door for an employee to counter by providing several examples where they did not immediately respond to contact because it was received out of hours. Hence, there is no unsatisfactory performance, but rather the existence of a workplace right for which the employer has now taken adverse action.

This, of course, leads to another potential issue. That being tactical refusals to monitor, read or respond to contact outside of the employee’s working hours. Employers believing they are faced with a tactical exercise of this workplace right should get advice, early.

Conclusion

With more roles involving remote working, flexibility and digital innovation, the right to disconnect is likely to become an important fixture of Australia’s workplace laws - at least while a Labor government is in power. ¹

Given the breadth of considerations that must be taken into account in determining whether a refusal to engage out of hours is unreasonable, disputes will inevitably arise.

Employers should turn their minds now to how they will address this new workplace right. Adjustments to workplace practices, procedures and documents should start being considered.

This article in no way constitutes legal advice. It is general in nature and is the opinion of the authors only. You should seek legal advice tailored to your individual circumstances before acting on anything related to this article.

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¹ The Coalition has foreshadowed overturning the right to disconnect if elected.