In February 2024, the Federal Government passed its second tranche of ‘closing loopholes’ reforms to the Fair Work Act 2009. These reforms identify and seek to fix areas where the law fails to protect worker rights (e.g. wage theft) or where recent court decisions have increased uncertainty around employee rights and responsibilities (e.g. the definition of casual vs permanent employment).
Amongst the amendments heralded by the closing loopholes reforms is the introduction of a new employee ‘right to disconnect’. The right is targeted at improving employee mental health by promoting greater work-life balance, and to protect employees against exploitation from additional or excessive working hours.
Right to Disconnect
In summary, the ‘right to disconnect’ amendments to the Fair Work Act 2009:
- confer a new positive right on national system employees to refuse to ‘monitor, read or respond to contact, or attempted contact’ from their employer outside of their working hours, unless the refusal is unreasonable
- cover contact and attempted out-of-hours contact by both the employer and third parties related to the employee’s employment (e.g. customers, suppliers and patients)
- requires the employer to establish that an employee’s refusal to respond to out-of-hours contact is unreasonable (e.g. in the case of disputes or disciplinary proceedings)
- provides that an employee’s refusal to respond to out-of-hours contact is a ‘workplace right’ – and is therefore subject to protection from adverse action
Factors for Determining Reasonableness
The right to disconnect will not apply to circumstances in which an employee’s refusal to respond to out-of-hours contact is determined to be unreasonable. Whether an employee’s refusal to respond to out-of-hours contact is reasonable or unreasonable will depend on the circumstances, including:
- the reason for the contact
- the timing of the contact and how the contact is made
- the extent to which the employee is compensated for (a) being available outside their ordinary hours of work, or (b) working additional hours outside their ordinary hours if/when requested
- the nature of the employee’s role and level of responsibility
- the nature of the employer’s industry
- the consequences for the refusal (e.g. for the employer or any customers, suppliers or patients of the employer)
- the employee’s personal circumstances, including family or carer responsibilities
Dispute Resolution Process
In the event of a dispute over the reasonableness of out-of-hours contact by an employer and/or the refusal by an employee to respond to that out-of-hours contact, the employer and employee must first attempt to resolve the dispute informally at the workplace level. If these informal attempts are unsuccessful, only then may the employer or employee apply to the Fair Work Commission to deal with and arbitrate the dispute.
Orders that the Fair Work Commission may make in respect of a dispute include:
- declaration that an employer’s out-of-hours contact with its employees is unreasonable, and/or a declaration that an employee’s refusal to respond to that out-of-hours contact is unreasonable
- an order directing an employer to stop making unreasonable out-of-hours contact with its employees
- an order directing an employee to stop unreasonably refusing to respond to out-of-hours contact by the employer
- an order that an employer stop taking adverse action against an employee because of the employee’s reasonable refusal to respond to out-of-hours contact
Commencement Dates
The ‘right to disconnect’ amendments to the Fair Work Act 2009 will come into effect on:
- 26 August 2024 for all national system employers other than small business employers; or
- 26 August 2025 for all national system small business employers (i.e. employers that, when taken together with their associated entities, have fewer than 15 employees).
Additionally, all modern awards will be varied to insert a ‘right to disconnect’ term by 26 August 2024, with these terms being tailored to explain how the right will apply in practice in relation to the relevant industry and professions covered by the award.
Industries with specialised ‘right to disconnect’ terms will likely include the medical industries, the legal services industry, and the manufacturing industry (given the use of 24/7 roster arrangements).
What Does this Mean for Employers?
In advance of the new ‘right to disconnect’ amendments coming into effect, employers MUST:
- identify those employees or classes of employees who will (or are likely to) be contacted outside of working hours from time to time
- review employment agreements and position descriptions for those employees, ensuring that they contain terms confirming the reasonableness of out-of-hours contact with the employee (and the employee’s requirement to respond to such contact), having regard to the employee’s position, responsibilities and remuneration
- review and update any relevant existing policies and procedures affected by the new provisions (e.g. any ‘on-call’ policy and any dispute resolution/grievance policy)
- provide training and instruction to senior managers to ensure they are aware of these new provisions as well as the restrictions they impose in respect of out-of-hours contact with subordinate staff
- demonstrate increased caution before disciplining or terminating under performing employees who had previously refused to respond to out-of-hours contact (as this protected ground is liable to give rise to a General Protections/Adverse \Action claim)
For More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team to speak with one of our employment lawyers if you require any assistance or advice in respect of the above and/or any other workplace matters.
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.
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