The Right to Disconnect in Australia

Following our overview of the Closing Loopholes No. 2 legislation, this article takes a deeper dive into the new Right to Disconnect and its implications for Australian businesses.

 

Legislative framework

The new Right to Disconnect, outlined in new provisions in the Fair Work Act 2009 (Cth) grants employees an enforceable workplace right to refuse to monitor, read or respond to contact (or attempted contact) from an employer or a third party outside of their ordinary working hours, unless such refusal is unreasonable.

What constitutes ‘contact’ is not defined. However, we expect that it will be given a broad interpretation and include calls, texts, emails, messaging services (eg Teams, WhatsApp, etc) and any efforts to engage with employees.

In effect, an employee can refuse to engage with that contact if their refusal is ‘reasonable’. The new provisions do not exhaustively define what factors will be relevant in considering whether a refusal is reasonable. However, certain factors must be considered. These are:

• the reason for the contact or attempted contact;
• the mode of contact or attempted contact and level of disruption it causes the employee;
• whether the employee is compensated (including non-monetary compensation) for working outside of ordinary work hours;
• the employee’s role and level of responsibility; and
• the employee’s personal circumstances including family or caring responsibilities.

 

Dispute mechanism

The changes also prescribe a process for resolution of disputes between employers and employees about the right to disconnect.

First, where there is a dispute because an employee has refused to engage with the relevant contact from the employer, the employer and employee must attempt to resolve that dispute at the workplace level by discussions between the parties.

If the matter cannot be resolved between the parties, the employer or the employee can escalate the dispute to the Fair Work Commission (FWC). The FWC then has the power to consider the dispute. The FWC may make orders that the employee stop refusing contact or that the employer stop taking certain actions (eg, stop contacting the employee or stop taking disciplinary action against the employee for their failure to engage).

 

How will this work?

The right to disconnect does not prohibit employers contacting their employees outside regular hours.

However, it does mean that employers must fundamentally re-think operations and reconsider how they will engage with their Austrailan workforces. In particular, international businesses will need to consider expectations of Australian employees in terms of attendance at calls/meetings outside Australian business hours.

We also expect that as the FWC and the Courts start to grapple with the operation of the right to disconnect, there will need to be greater engagement with how this right to disconnect interacts with:

• what constitutes ‘reasonable additional hours’ of work under the National Employment Standards where the hours of work of a full-time employee are prescribed as 38 hours plus reasonable additional hours;
• the obligations on employers to ensure compliance with work health and safety obligations, including psychosocial hazards which includes the design and management of workload and working relationships, including methods and manner of workplace communications;
• the positive duty of employers to ensure a workplace which is not hostile to people of a particular sex or discriminatory on the grounds of sex, noting that a factor that must be considered when determining whether refusal to engage in conduct is reasonable is the employee’s family and carer’s responsibilities;
• how time spent engaging with such contact, and/or refusing to engage with such contact, will be treated for the purposes of overtime entitlements.

We also anticipate an increase in general protections claims in connection with exercises of the right to disconnect given the legislation specifically identifies that the right to disconnect is a ‘workplace right’. In particular, that an employer seeking to take disciplinary action against an employee for unreasonable refusal to engage with the relevant contact will not only need to grapple with the new dispute mechanism but also need to prepare for employees also raising the issue in the context of a general protections dispute.

 

Next steps for employers

Employers should take steps now to prepare for the new right to disconnect. This includes:

• reviewing employment contracts;
• considering updating or introducing policies regarding out-of-hours contact;
• updating recruitment policies and procedures to be clear about expectations for out-of-hours contact, particularly where a role will involve being part of an international team; and
• designing new processes to manage communication protocols and expectations.

Don’t hesitate to reach out to our team if you would like to discuss this further and understand how best to prepare your business.

Click here to read our latest update on The Right to Disconnect in Australia.