Australia: The right to disconnect – working hours from 9 to 5 (

brief

A new workplace right has been introduced – the ‘right to disconnect’ Fair Work Amendment (Closing Loophole 2) Act 2024effective from 26 August 2024 (or 26 August 2025 for small business employers). On 23 August 2024, the Full Bench of the Fair Work Commission finalised the new model ‘right to disconnect’ clause, which will soon be included in all modern awards. While we wait for the Fair Work Commission (FWC) to issue guidance on the new workplace rights, here’s what you should know and how we think you should prepare for the introduction of the right to disconnect.

content

1. background
2. What is the “right to disconnect”?
3. What if there is a dispute?
4. What are the guidelines?
5. Recommended action

The concept of the right to disconnect is not new. France introduced this right in 2017, requiring workplaces to consult with employees to decide on the right to ignore devices after get off work. Similarly, in Portugal, it is illegal to contact employees outside of working hours, and employers who violate these laws are subject to hefty fines.

Importantly, in Australia, the right to disconnect does not prohibit employers from contacting employees at any time. Rather, it sets the expectation that employers cannot always expect employees to read their messages or respond to communications. Employers should be mindful of what represents reasonable contact in the context of their employees, business, industry and workforce.

One of the factors driving people to give up their rights at work is the increasing connection to digital technology with the rise of flexible working arrangements. A 2023 study by the Australia Institute found that employees spend an average of 5.4 hours per week doing unpaid work outside of normal working hours, costing an average of $11,000 per year. The increasing expectation to stay digitally connected has led to significant concerns about employees’ health, wellbeing and work-life balance, including leading to anxiety and burnout.

From August 26, 2024 (or August 26, 2025 for small business employers), employees will have new workplace disconnection rights:

“An employee may refuse to monitor, read or respond to contact or attempted contact from the employer outside of work hours unless the refusal would be unreasonable.”

The new right also extends to work-related contacts with third parties, such as clients or customers.

The right to disconnect power is a ‘workplace right’ which provides protection under the General Protection Regime to eligible employees. Fair Work Act 2009 (federal).

Contact is not defined, but it may extend to all forms of communication, including contact or attempted contact by email, telephone, text message, instant messaging or other means.

Unfortunately, whether or not a right to refuse exists in a particular situation will depend on the specific facts and circumstances of that situation. This is because of how the right is set out in legislation.

A key consideration in determining whether a right exists in a particular situation is whether the right is objective. unreasonable Employees have the right to refuse to monitor, read or respond to communications. Whether a refusal to monitor or respond to communications is unreasonable will be determined based on the following factors:

1. The reason for contacting or attempting to contact (including where contact or attempt to contact is required by law)
2. The manner of contact or attempted contact, and the degree of disruption caused to the employee by the contact or attempted contact
3. Amount of compensation (including non-monetary compensation) received by the employee:
   1. be able to continue working during the time of contact or attempted contact; or
   2. Working overtime outside of an employee’s normal working hours
4. The nature of the employee’s role and the employee’s level of responsibility
5. The employee’s personal circumstances (including family or caring responsibilities)
6. any other relevant factors.

Because these factors depend in part on an analysis of the specific circumstances (including, for example, what the employee may be doing at the time), it is impossible for an employer to definitively determine in advance whether a refusal to monitor, read or respond to contact is reasonable.

For example, you could imagine a high-paying, global senior role where there is an objective expectation that the employee would be available outside of normal working hours. However, there may be exceptional personal circumstances which mean it is not unreasonable for such an employee to refuse to respond to contact. For example, they may be attending a child’s graduation or funeral. This does mean that employers need to be careful and consider all the circumstances before penalising employees for not responding to certain communications.

Following consultation, the Full Bench of the Fair Work Commission finalised a new model ‘right to disconnect’ clause on 23 August 2024, which will soon be included in all 155 modern awards. The model clause largely reflects the workplace rights set out in legislation. However, it also clarifies that an employer can require an employee to monitor, read or respond to contact or attempted contact from the employer outside of working hours if the award relates to work after hours, for example:

• The employee is receiving standby allowance and the reason for the contact is to notify the employee that they are required to attend or perform work, or to give other notice of being on standby.
• Employers are contacting employees to notify them of emergency schedule changes or recalls to work.

The above is not an exhaustive list of circumstances in which an employer may contact or attempt to contact an employee outside of working hours.

The Fair Work Commission has pledged to publish written guidelines on the disconnection right, but only after it resolves some disputes about its practical application. It will also conduct a further review of the provision in about 12 months.

Disputes about whether a refusal to monitor, read or respond is unreasonable must first be attempted to be resolved at the workplace level through discussions between the employee and employer.

If the dispute cannot be resolved at the workplace level, the employee or employer can apply to the Fair Work Commission (FWC) for an order to prevent the unlawful conduct, and/or to deal with the dispute in some other way (through mediation, arbitration or agreed arbitration) (Note – while the parties can appoint an individual or industry association to represent them, they need the permission of the Fair Work Commission to be represented by a paid agent or lawyer.)

The Fair Work Commission can do so if it is satisfied that:

• the employee’s refusal is unreasonable and an order is made to prevent the employee from continuing to unreasonably refuse further contact, or
• The refusal is not unreasonable and:
  • there is a risk that the employer will take disciplinary action against the employee, an order is made to prevent the employer from taking disciplinary action; or
  • If the employer continues to require the employee to monitor, read, or respond to the contacts despite the refusal, an order preventing the employer from continuing to require the employee to monitor, read, or respond to the contacts.

The Fair Work Commission cannot order financial penalties in relation to this dispute, however, it can impose maximum penalties for breaches of these orders: up to $18,780 for an individual and up to $93,900 for a company.

The Fair Work Commission has announced that it will publish guidelines on disconnection rights once it has had a chance to properly consider disputes relating to the new rights. Those guidelines may not be published for some time.

The Fair Work Commission has also just completed a consultation process on the clauses that must be included in all modern awards. The Fair Work Commission published the final model clauses on 23 August 2024.

There are a number of steps you can take to ensure your business can adequately address the right to disconnect. We recommend that employers carefully consider the reasonable expectations of their employees in relation to after-hours contact, taking into account the nature of their duties and responsibilities and the level of their job. It is important that employers set out these expectations in advance in employment contracts, job descriptions or communications with employees.

Employers should then conduct training and discuss the following issues with senior staff and managers:

• Different expectations among employees
• Contact needs outside working hours
• When and how to contact affected employees outside of working hours
• Is an existing handover setup, roster or similar system required?
• What contact method should you use? Have employees expressed a preferred method of contact?
• How to manage third-party contacts outside of working hours, including contacts from clients, customers and the public

Before contacting an employee, you should consider:

• Are employees protected by modern awards? If so, are termination rights in modern awards more restricted?
• Is the employee taking annual leave, sick leave or carer’s leave?
• How urgent is the contact? Can you wait until the employee returns to work?
• When do you contact? How long does it take to get a response?
• Have you considered your employees’ total workload and the overtime work that has been performed recently?
• Do employees receive any compensation, such as extra vacation time, hardship, or overtime pay?
• Has the employee shared with you that they have personal circumstances that make it difficult to contact or reach out after hours? Don’t assume that someone with caring responsibilities cannot work overtime.
• Is it important for the employee to be able to disconnect from their work environment? Do they work in a high-stress job or industry? Do they have a job that is mentally or physically taxing?
• Do employees know they should stay connected outside of work hours?
• Should other employees be contacted?

More importantly, employers should consider establishing a review process for situations where a manager believes an employee should be warned or disciplined (or even given a negative performance review) because the employee did not respond to contact after hours. This process should ensure that each communication is reviewed thoroughly, taking into account the factors we listed above, including any expectations previously set by the employer.