The ‘right to disconnect’: everything employers need to know

By Fay Calderone and Abby Wright

In a landmark move, Parliament has passed the Fair Work Amendment (Closing Loopholes No. 2) Bill 2023 (Bill), including an amendment which grants employees the right to disconnect from their employer outside their work hours. Here’s what it means for employers.

What is the ‘right to disconnect’?

The Bill defines the ‘right to disconnect’ 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.

The right will be included as a model term in modern awards and will be explicitly recognised as a protected right under the Fair Work Act 2009 (Cth) (the FW Act).

When is an employee’s refusal unreasonable?

The Bill contains a non-exhaustive list of factors, which must be considered in determining whether a refusal is unreasonable, including:

• 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 (which includes non-monetary compensation):
  • to remain available to perform work during the period in which the 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); and
• whether the contact is required under a law of the Commonwealth, State or Territory.

What happens when the employee and employer disagree?

Naturally, employees and employers may have different opinions on what constitutes “reasonable contact”. To address this, there will be a process for dispute resolution, which involves taking disagreements to the Fair Work Commission (Commission).

First, both the employee(s) and employer must try to resolve the dispute at their workplace. If these discussions don’t resolve the issue, either party can then apply to the Commission for assistance.

Where a dispute surrounding the right to disconnect arises, an employee or employer can approach the Commission to do either or both of the following:

• make a ‘stop order’; and/or
• otherwise deal with the dispute.

Stop orders

There will be different types of stop orders under this provision. For instance, the Commission can order an employee to stop refusing certain contact, an employer to halt certain contact attempts or an employer to cease disciplinary or other action against an employee for refusing contact.

To get a stop order, there must be a risk that the unreasonable behaviour will continue. For example, if an employer contacts an employee once outside their working hours, the employee won’t get a stop order unless they show this behaviour is likely to continue.

Breaching a stop order could result in civil penalties under the FW Act. The government plans to make further changes to the provisions through additional legislation. These changes will remove the possibility of criminal charges for breaching stop order, as the government has confirmed they never intended this as a penalty.

Otherwise dealing with a dispute regarding the right to disconnect

This is a broader power of the Commission to deal with a dispute in a manner it sees fit. This would likely include a conciliation conference or making recommendations. If parties agree, they can also ask the Commission to arbitrate the dispute. The Commission will provide additional guidelines on these types of disputes.

When do these changes commence?

The right to disconnect provisions will not come into effect for six months following royal assent of the Bill (which is increased to 12 months for small businesses).

Key takeaways for employers

• The ‘right to disconnect’ has been highly publicised in the media, and employees will likely be invested in what this means for them. It’s important to talk openly with your employees to help them understand how this law might affect them if it’s passed.
• Deciding if it’s okay to ignore work messages after hours depends on many factors. For employees on annualised salaries and with high seniority, their access to the right may be limited because their salaries include ‘reasonable additional hours’. These laws will mainly target employees paid at award rates, who are expected to be ‘on call’ without any further compensation (although personal circumstances and health and safety must at all times be considered).
• As model terms are brought into modern awards, there will be an expectation these are also incorporated into enterprise agreements. Employers who have enterprise bargaining on the horizon should anticipate a push during negotiations to include a term to this effect.