Technology has expanded the way we work. Work can now be conducted anywhere you can take a laptop, smartphone, or smartwatch. This has resulted in the lines between working hours and private lives being blurred.
On 26 August 2024 the ‘Right to Disconnect’ (RTD) in the Fair Work Amendment (Closing Loopholes No.2) Act 2024 will take effect for national system employers with more than 15 employees, with small businesses required to observe the changes from 26 August 2025.
What is the Right to Disconnect?
The new RTD will give employees the right to refuse to monitor, read or respond to contact, or attempted contact, from an employer or third party outside of the employee’s working hours unless the refusal is unreasonable.
Can employees be contacted at all outside of working hours?
The RTD does not prevent all contact with employees after hours, rather it prohibits the unreasonable expectation or demand for contact when the employee has reasonably refused.
When determining whether contact is reasonable employers should consider:
- The reason for the contact;
- How the contact or attempted contact is made and the level of disruption it may cause the employee;
- Whether the employee is compensated to remain contactable outside of working hours;
- The nature of the employee’s role and level of responsibility; and
- The employee’s personal circumstances.
What should employers be doing to prepare?
Employers should consider:
- Training managers and supervisors about the new right, along with the positive duty to eliminate psychosocial hazards at work. This might include providing guidance on when an employee can or should be contacted after their usual hours of work and when contact might be unreasonable.
- Updating or introducing policies that deal with the new right and when contact is reasonable and when it is not. This might be in conjunction with WHS and/or flexible work policies.
- Updating contracts of employment to deal with the new right and to specify when/ what compensation is paid or available for contact outside of work. This might include an on call allowance or time off in lieu.
- Reviewing position descriptions to include out of hours contact as an inherent requirement of the role where appropriate.
- Review the way work is conducted, including how resources are allocated.
- Encourage employees to schedule emails to be sent during agreed working hours and consider confirming employee availability in email signature blocks.
How can disputes be resolved?
In the first instance, section 333N of the Fair Work Act 2009 (Cth) (FWA) will require discussions to be had at the workplace level to try to resolve the dispute.
If the dispute remains unresolved, the Fair Work Commission (FWC) will have the power to determine whether an employee’s refusal was reasonable or not and issue ‘stop orders’. The orders may:
- prevent an employer from making unreasonable contact with the employee; and/or;
- prevent an employer from taking action against an employee for their reasonable refusal; and/or
- Prevent an employer from continuing to require contact by the employee.
Employers should not that civil remedies will be available for contravention of an order made by the Commission.
Workplace Rights and Health and Safety
The RTD will also be a workplace right within the meaning of Part 3-1 General Protections of the FWA. This means that if an employer threatens to, organises or takes action by:
- Dismissing the employee;
- Injuring the employee in their employment;
- Altering the position of the employee to the employee’s prejudice, or
- Discriminating between the employee and other employee of the employer;
this may give rise to an employee instituting a general protections claim against their employer.
Under work health and safety laws, persons conducting a business or undertaking have a duty to ensure that risks to worker’s physical and psychosocial health and safety are eliminated or minimised as far as reasonably practicable. It is recognised that high job demands, challenging work hours and unrealistic expectations to be responsive outside work hours can be a psychosocial hazard.
As part of these changes, s 333R of the FWA provides that concurrent actions under work health and safety laws will not be prevented from proceeding. This means employers could face orders made under both safety and employment law.
To find out more about the right to disconnect or get support in implementing changes for your workplace please contact our employment law team.
