Does the right to disconnect fit the bill?

Introduction of legal right to disconnect for employees

It’s official. Australian employees have been granted a legal right to disconnect. The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (the Bill) has successfully passed through both houses of Parliament. This new legal right to disconnect is a divisive change, with businesses expressing concerns it is unnecessary and is likely to lead to increased disputes between employers and employees.

This article provides a comprehensive overview of the new right to disconnect, assesses its implications on the broader workforce, and proposes measures for employers to adequately prepare for the legislation's enactment.

Overview of the legal "right to disconnect" for employees

Overview of the right to disconnect

Once the law commences, employees will have a legal right under the Fair Work Act 2009 (Cth) 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. The scope of this right will apply to calls, emails, texts, MS Teams messages and any other contact by an employer after hours that is not reasonable.

The legal right to disconnect also extends to any contact or attempted contact from third parties outside of the employee's working hours that relates to work matters.

Small business employers are not caught by this new right to disconnect. In the final hours of this law making its way through Parliament, it was amended to exclude employees of small business employers.

Unreasonable refusal

In determining whether an employee's refusal is unreasonable, the following must 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).

It should be noted that the compensation of an employee for remaining available to perform work outside their ordinary working hours can extend to non-monetary compensation (i.e. additional time off, flexible working arrangements, tangible rewards).

If employers can adduce evidence that their 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 unreasonable.

A workplace right

In addition to the new legal right, an employer will 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 working hours.

If employers proceed with any adverse action, this may give rise to employees instituting general protections claims against their employer.

Modern awards and enterprise agreements

Modern awards must be varied to include a new model term containing a right to disconnect.

If an employee is covered by an enterprise agreement with a more advantageous right to disconnect clause than that provided by this legislation, the agreement's clause remains applicable to the employee.

New disputes framework: "stop" orders

The right to disconnect legislation includes a new regulatory framework that can be relied on to resolve any disputes between employers and employees. In the first instance, the expectation is that the parties should endeavour to resolve the dispute at the workplace level.

However, in the event that it cannot be resolved, either party can escalate the matter by applying to the Fair Work Commission (FWC) for an order. The FWC can issue an order to either tell the employee to stop refusing contact or tell the employer to stop making contact, or otherwise deal with the dispute.

How can employers prepare for the new legislation?

As the legislation will commence shortly, employers should be aware that they will now have less say in when they can expect responses from their employees (if contact is occurring outside of agreed work hours).

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

• preparing policies around the use of work technology outside of agreed working hours;
• monitoring employees' work activity outside of agreed working hours;
• encouraging managers to respect employees' boundaries;
• providing training for managers to ensure they are aware of the new right and don't take action against employees who are exercising their new right;
• training employees about the new right and what their employer is doing about it;
• organising feedback mechanisms for employees who feel the need to work outside of agreed working hours;
• encouraging all employees to schedule any emails and tasks to be delivered during agreed working hours; and
• organising training that highlights the mental health benefits of disconnecting from work.

Next steps

The right to disconnect will commence six months from the date the Act receives royal assent.

Image sourced via AdobeStock.