New ‘Right to Disconnect’ Laws and What It Means for Employers

On 26 August 2024, many Australian employees gained the statutory “right to disconnect”. As the name suggests, this new law is intended to prevent work from encroaching on an employee’s personal time.

‍

What is the 'right to disconnect'?

The new “right to disconnect” provisions of the Fair Work Act 2009 provide:

• An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.

• An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.

On first glance, these provisions seem simple and straightforward but look closer and some important factors stand out:

• The “right to disconnect” does not prevent an employer from attempting to contact an employee outside their working hours.  But employees can still refuse to engage with those communications if they receive them after hours and the refusal is reasonable.

• The right extends to contact from third parties if that contact is about an employee’s work.  This means that an employee can also refuse to engage with communications from the business’ clients if the refusal is reasonable.

• Not all employees get this right.  To qualify, the employee must meet the definition of a “National System Employee”.  Most do. But the majority of state-government employees, or those working for local councils, do not.

• Most importantly, an employee cannot refuse to engage with after-hours contact if that refusal would be unreasonable. Unhelpfully, the new provisions do not provide certainty as to what qualifies as an unreasonable refusal.  Any assessment needs to be undertaken on a case-by-case basis and having regard to:
  • 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 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; and
  • the employee’s personal circumstances (including family or caring responsibilities).

Where a dispute arises between an employee and an employer about these provisions, the Fair Work Commission will have jurisdiction to resolve the dispute, including by way of arbitration and making binding orders that the parties have to follow.

‍

Some general tips on how to manage the 'right to disconnect'

The “right to disconnect” is currently untested and in the coming months and years, we expect that courts and tribunals will provide further guidance on how to assess what constitutes an unreasonable refusal.

In the meantime, there are some steps employers can take to minimise the more obvious risks:

Communicate with employees about expectations: If the business knows that there is likely going to be need to contact an employee after-hours ahead of time (for example, a client has an urgent deadline), then discussing with the employee ahead of time and assessing their availability and willingness to be contacted will allow the business to best be able to meet its commitments.  Likewise, having a culture where employees can speak up about their personal circumstances will help the employer assess when an employee may not be reasonably contactable.  

Create a policy on the right to disconnect: Employers can publish guidance materials as to how and when supervisors or managers should contact employees after hours.  The policy will need to be cast in broad terms and, rather than provide a definitive list of when contact will be reasonable, it should assist supervisors or managers in being able to make the assessment for themselves.  It will also need to set up a process for an employee to raise a dispute and how that dispute can first try and be resolved at the workplace level.    

Update employment contracts: While not a complete answer to a dispute, if an employee is being paid above-award rates or has managerial responsibilities, then this should be recognised in a contract.  Carefully worded contract clauses that make clear that the employee is being appropriately remunerated for after hours contact will assist employers in being able to argue an employee’s refusal is unreasonable in certain circumstances.

Workers’ Compensation

If employers do not establish policies to support employee’s right to disconnect, there is a risk of psychological injury to employees. It is unlikely a defence of ‘reasonable employer action’ (in NSW under section 11A(1) of the Workers Compensation Act 1987) will be available for injuries which are claimed to result from contact which is made by the employer during periods of where a right to disconnect is asserted.  

‍

Directors’ & Officers’ Liability

A large percentage of Employment Practices Liability (EPL) related matters currently flow through either The Fair Work Commission or Human Rights Commission. If Directors and Officers of a business do not take the necessary measures to ensure adherence with this amendment to the Fair Work Act 2009,they risk exposing themselves (and the business) to a new stream of EPL claims. Implementing compliant and documented policies that outline how managers engage with staff outside of working hours (and providing necessary training to all managers) is one way of avoiding any unintended consequences of these recent changes.

Need more information? Feel free to reach out to our specialist team.