The Right to Disconnect… What Does it Mean?

The Labour Government’s most recent addition to their suite of industrial relations reforms, being the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), recently passed into law on 12 February 2024. Of note was the Right to Disconnect amendment which provides employees with a new right to “refuse to read, monitor or respond to contact or attempted contact” from their employer or a third-party, such as a client, unless their refusal is “unreasonable”.

What is a Right to Disconnect?

The Right to Disconnect can be interpreted simply… it is a right for employees to disconnect from their employment. In doing so, they have a right to refuse contact outside of work hours where it is reasonable to do so. For the purposes of this law, work hours includes any time the employee is not performing their roles and duties in accordance with their contract of employment. Therefore, the Right to Disconnect also applies in periods of leave.

Importantly, the Right to Disconnect is not a right to be free of all contact from work outside of work hours, nor does it prohibit employers from contacting employees after work hours. Instead, they can actively elect to exclude themselves from communicating with their employer or a third-party.

In determining whether a refusal is reasonable, the law stipulates that the following factors must be considered:

1. The reason that the employee was contacted.
2. The nature of the contact and the disruption caused to the employee.
3. The compensation that the employee was awarded to work additional hours.
4. The nature and seniority of the employee’s role.
5. The contextual personal circumstances of the employee.

What if there is a dispute?

Where a dispute arises, the law provides the following dispute resolution processes:

1. Engage in internal discussions in an attempt to resolve the dispute at the workplace level.
2. Apply to the Fair Work Commission for a “stop order” to deal with the dispute in a similar process to the Commission’s current jurisdiction to deal with any instances of bullying in the workplace.

The Fair Work Commission can then make orders to (a) prevent the employer from taking any disciplinary action against the employee for exercising their Right to Disconnect; and/or (b) prevent the employer from continuing to require an employee to connect with their employment outside of work hours. The Commission also has jurisdiction to impose a financial and pecuniary penalty for any breaches of the law.

When Will the Right to Disconnect Come Into Effect?

The law received royal assent on 26 February 2024. Therefore, the Right to Disconnect will come into effect and be a binding law on 26 August 2024.

Tips For Employees

The Right to Disconnect provides employees with significantly more power to act on employers with excessive expectations to communicate and perform work outside of work hours.

Importantly, as this is a new workplace right, it is a right that falls within the scope of a general protections claim. This increases the availability of a general protections claim where businesses are not compliant and take adverse action against the employee for exercising their Right to Connect.

Tips For Employers

Businesses have to prepare for the Right to Disconnect laws by implementing new policies and procedures. In particular, all employers should implement or revise a Communications Policy that details the level of communication expected of employees, particularly outside of work hours.

Further, employers should review the employment contracts of their employees. If an employer requires an employee to engage with their work outside of work hours, they can include a clause that requires the employee to work reasonable additional hours.

It is also important that employers are aware of the Right to Disconnect and respect that right. To avoid claims such as a general protections claim, employers must not expect employees to engage in any communication or work activity outside of working hours, and must also not reprimand employees for failing to do so.

Takeaways

With the Right to Disconnect due to come into effect shortly, now is the perfect time to prepare your business by implementing a new communication policy that addresses any contact made outside of work hours.

To determine if your business is compliant with these new laws, as well as existing workplace legislation, contact Chamberlains HR for a free health check on 02 6188 3633.

*This article was written with the assistance of Oscar Arnott.