The right to disconnect
What does it mean for your organisation and is it necessary?
By way of an amendment introduced by the Australian Greens in the Senate of the Commonwealth Parliament, the Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023 will amend the Fair Work Act 2009 to include a right of an employee to “disconnect”.
What does this mean?
It means that an employee will be entitled to ignore any communication or attempted contact from their employer outside of the employee’s working hours, except if to do so would be unreasonable. This entitlement also extends to communications and contact from third parties where it is related to the employee’s work. Essentially, employees will be able to clock off, go home and ignore any communication or attempted contact that is work related.
Or will they?
The use of the qualifier “unreasonable” means that there will be times that out of hours contact will be reasonable. The amendment will require, but not limit, that the following are taken into account in determining what is unreasonable:
the reason for the out of hours contact
how the out of hours contact is made
the level of disruption caused by the out of hours contact
how the employee is compensated (including non-monetary compensation) for out of hours contact (if at all)
the employee’s role and level of responsibility
the employee’s personal circumstances.
Where an employee and an employer disagree about the reasonableness of out of hours contact and can’t resolve their disagreement at the workplace level, either may make an application for the Fair Work Commission to deal with the dispute. Not only can the Fair Work Commission deal with the dispute by mediation, conciliation, arbitration (by consent), making a recommendation or providing an opinion, but it may also make an order that the:
employee stop refusing to monitor, read or respond to out of hours contact
employer stop making or attempting to make out of hours contact
employer is not to discipline the employee for refusing out of hours contact.
Is this amendment necessary?
It is arguable that employees in Australia are already entitled to refuse out of hours contact. Employees must comply with the directions of their employers, so long as those directions are reasonable and lawful. The requirement by an employer that their employees respond to out of hours contact may not be reasonable in all circumstances. Much like the amending legislation, the determination of what is reasonable depends on a number of factors.
The amendment does provide a stronger basis for employees to refuse out of hours contact and effectively places the burden on the employer to show a refusal to engage with out of hours contact is unreasonable. And while before this amendment not all employees who were disciplined or terminated for not responding to our of hours contact had recourse to the Fair Work Commission, any employee who refuses out of hours contact
will be able to raise a dispute with the Fair Work Commission if the employer disciplines them as a result
make an adverse action claim if the employer terminates their employment.
When will it commence?
The amendment is scheduled to commence 6 months after the Bill receives Royal Assent.
We will continue to review the Closing Loopholes No.2 Bill and provide updates regarding other relevant amendments to the Fair Work Act that will impact on our clients.