Do not disturb: the ‘right to disconnect’ is on its way
Read our previous article on the right to disconnect from February 2024.
Parliament passed several amendments to the Fair Work Act 2009 (Cth) (FW Act) through the assent of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Amending Act) on 26 February 2024. The ‘right to disconnect’ has received the most attention of all the amendments.
With the right to disconnect provisions coming into effect for employers (other than small business employers) from 26 August 2024, we provide a brief recap of what the ‘right to disconnect’ is, what has happened since the Amending Act received assent and some key takeaways about implementing the ‘right to disconnect.’
Recap on the ‘right to disconnect’
As outlined in our previous article, the ‘right to disconnect’ is defined as the right for an employee to ‘refuse to monitor, read or respond to contact, or attempted contact’ from their employer (or related parties) outside their work hours, unless it’s unreasonable to do so. To determine whether a refusal is unreasonable, several factors will be considered including the reason for the contact or attempted contact, the employee’s remuneration and personal circumstances.
A new or existing right?
Despite the publicity, in one sense the ‘right to disconnect’ is not strictly a new right but a further development of the protections afforded to employees in relation to hours of work.
Employees cannot be required or requested to work hours that are not ‘reasonable additional hours’ in accordance with the National Employment Standards (NES) of the FW Act. The factors considered to determine if additional hours are unreasonable are similar to the factors that will be assessed against to determine if a refusal to be contacted outside of work hours is unreasonable (eg remuneration, personal circumstances and role type).
In saying that, the introduction of an express ‘right to disconnect’ creates new ways of enforcing the right of employees to resist a direction that to attend to work outside of their normal working hours.
Why now?
The ‘right to disconnect’ is the result of a deal between the Labor Government and the Greens to ensure the passage of the Amending Act. It is also a response to changing workplace dynamics, including increased remote working and technology capabilities that have enabled after hours contact like never before.
There is also an increased recognition that unreasonable work demands create a risk to the health and safety of workers. Psychosocial hazards are now expressly recognised as a work health and safety issue, with the way work is managed and the working environment contributing to psychosocial hazards such as high job demands, low job control, remote or isolated work and poor support.
The Productivity Commission observed in its 2021 Working from home research paper that blurring the lines between home and the workplace increases the risk of work impinging on non-working life, presenting risks to mental health. Further, SafeWork Australia has summarised the key costs associated with psychosocial hazards in the workplace, including that in 2021-22, the median loss of productivity arising from workplace mental stress, measured in working weeks, was 34.2 weeks.
We have also seen a similar right to disconnect recognised in countries such as France, Argentina and Belgium demonstrating a cultural shift to work ‘smarter not harder.’ Similarly, we are seeing trials of a four day work week globally and in Australia, indicating a desire to explore ways to improve employee wellbeing whilst maintaining workplace productivity and increasing efficiency.
These are just some of the factors we consider have contributed to the ‘right to disconnect’ being implemented in Australia.
What’s next?
On 26 August 2024:
- the ‘right to disconnect’ provisions will take effect in the FW Act, including related dispute resolution powers of the Fair Work Commission (Commission) which are discussed in our previous article;
- the ‘right to disconnect’ will become a workplace right under the FW Act, meaning employees cannot have adverse action taken against them by an employer because of the exercise or proposed exercise of the ‘right to disconnect’; and
- modern awards will include an express ‘right to disconnect’ term.
Dispute resolution powers
The FW Act will provide that disputes about what constitutes ‘reasonable contact’ must first be dealt with at the workplace level. If an employee and employer are unable to resolve the dispute, either party may then apply to the Commission to make a ‘stop order’ and / or otherwise deal with the dispute.
Workplace right
The inclusion of the ‘right to disconnect’ as a workplace right expressly recognises taking adverse action against an employee because of the exercise or proposed exercise of the right will be a breach of the general protections provisions of the FW Act. Employees may bring a general protections claim on this basis either as a standalone claim or as part of a broader claim.
Modern award term
As noted above, modern awards will include an express ‘right to disconnect’ term, a draft of which has been published by the Commission. Key aspects of the draft term include that:
- unless it is unreasonable to do so, an employee may refuse to monitor, read or respond to contact, or attempted contact, from their employer or a third party in relation to their work, outside of the employee’s working hours;
- an employer must not directly or indirectly prevent an employee from exercising the ‘right to disconnect’; and
- the employer can still require an employee to monitor, read or respond to contact outside of working hours where the employee is paid a stand-by allowance, and the usual notification arrangements are followed.
We note the Commission has used the Business Equipment Award 2020 for the purposes of the draft term, however, not all modern awards allow for a stand-by allowance and the specific ‘right to disconnect’ term will be different for each occupation and industry covered by a modern award. Submissions on the draft term close on 1 August 2024 and guidelines are due to be published before the term comes into effect.
Key takeaways – implementing the ‘right to disconnect’
Given the publicity surrounding the ‘right to disconnect’ employers should expect employees or certain areas of the workforce will want to understand their rights in more detail. Accordingly, employers should:
- ensure they are equipped to provide employees with accurate information about the right to disconnect;
- conduct training for HR teams and managers regarding contact outside hours and what is expected or appropriate; and
- determine how they will respond internally when an employee asserts a ‘right to disconnect’, including reviewing their internal dispute resolution procedures and considering whether it is appropriate to publish internal guidelines about after hours contact.
Employers need to consider what steps they need to take to ensure they will safely operate within the right to disconnect boundaries. We recommend employers:
- review their operations and identify when employees are working, how often and why employees are contacted out of hours, how contact is made and what risk areas exist where employees may be contacted in breach of the ‘right to disconnect’; and
- review employment contracts and position descriptions to ensure the terms reflect any need for the employee to be available outside normal hours of work.
Please contact our Employment and Workplace Relations team if you need any assistance.