Laura Oh

Workplace & Employment

Closing Loopholes: The Right to Disconnect

On 26 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) received Royal Assent, amending the Fair Work Act 2009 (Cth) (the Act).One of the changesenacted by this amendment is the introduction of “the right to disconnect” – the right for employees to not respond to work communications outside of ordinary work hours from 26 August 2024. 1. What is the Right to Disconnect? The right to disconnect is the employees’ right to refuse monitoring, reading, or responding to emails, telephone calls or any other kind of communication from their employer outside of work hours, except where such contact is reasonable. This applies to any contact from communications from a third party relating to work outside of work hours. The right to disconnect will become a protected right under the general protection regime in the Act, meaning that the employer is barred from taking any adverse action (e.g., disciplinary action, demotion or dismissal) against the employee for reasonably refusing work-related contact or attempted contact. This provides a broader avenue for employees to bring a claim against employers – in comparison to the unfair dismissal claim. However, this right to disconnect does not mean that employers are not allowed to contact their employees outside ordinary working hours – rather, while the employers may attempt contact with their employees, the employees have a right to refuse to consider any contact relating to their work. Small businesses exemptions Small businesses are exempt from the application of the right to disconnect until 26 August 2025, which gives them more time to prepare and adjust for any changes. Under the Act, you are a small business employer at a particular time if you employ less than 15 employees at that time. A casual employee is not counted unless the employee is a regular casual employee, and your associated entities (e.g. parent company or subsidiaries) are taken to be one entity. 2. What is a reasonable contact? The salient caveat to this new right is that employees cannot exercise their right to be disconnected where such contact is deemed reasonable and necessary. The new legislation provides the following factors that could be used to judge whether the contact is reasonable: 1. Nature and urgency of the reason for contact; 2. Method of contact and the level of disruption for the employee; 3. Degree of compensation for employees for the work outside their normal working hours; 4. Nature of employee’s role and level of responsibility; and 5. Employee’s personal circumstances. For instance, where contact is required under a law of the Commonwealth, State or Territory, the contact would be deemed to be a reasonable exception to the employees’ right to be disconnected. Also, the expectation of a managerial-level employee to respond to urgent emails will be higher than that of a low-level employee involved in clerkish duties. 3. Dispute over the Right to be Disconnect? As there are no case precedents to expand on the meaning of “reasonable contact”, many workplaces may face disputes over the application of this novel right. Where such a dispute occurs, employers and employees should primarily attempt to resolve the dispute at the workplace level through internal discussions. Nonetheless, if the dispute cannot be resolved internally, either party may apply to the Fair Work Commission to make a “Stop Order” that is presumed to operate similarly to the current anti-bullying order. The employee may order the employer to stop taking adverse actions, and the employer may also apply for a stop order to oblige the employee to stop unreasonably refusing to monitor, read or respond to contact or attempted contact from the employer. Currently, a breach of such a stop order may attract civil penalties of up to 60 penalty units (currently equivalent to $11,538.60) under the Act. 4. What does this mean for employers? Proper responsiveness to this new legislation will require appropriate adjustments to existing business policies. Employers should begin by considering how they may change existing work standards, practices and policies whilst also providing training to managers on this new change. We recommend that employers establish internal procedures for any after-hour communications, based on the specific role of each employee. Specifically, we propose employers to review their current employment contracts and job descriptions as well as employment handbooks to ensure no clauses expect the employees to work outside the normal working hours (depending on the nature of the role), and also consider providing internal training to all employees on this new right to disconnect. 5. Our thoughts While this right to disconnect may seem a little odd for many hard-working Australians, this right has existed from as early as 2016 in European countries, such as Spain and France. Since then, other countries around the globe, including Belgium, Portugal, India, Argentina, Chile, and Brazil, have implemented this right to disconnect to assist with growing occupational health issues that have arisen due to digital connection and growing work hours. We have seen successful implementation of this right to disconnect in other jurisdictions, overcoming prior concerns over workplace productivity and communication. Some practical recommendations for this right to be disconnected could include technical solutions like automatic forwarding of messages from inboxes of people on holiday or the use of a delayed sending option so people do not receive messages outside their working hours. Other humanistic approaches can be implemented by including information that the sender does not expect a reply on the same day, or by conducting firm-wide training on the new right, which some firms have already been doing for a long time before this right became a law. Please do not hesitate to contact us if you have any questions about this new law and how best to prepare your business and employees. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.

24 May 2024