Switching off - understanding the new right to disconnect

From 26 August 2024, many employees will have the right to ignore contact from their employer or a third-party, related to their work, outside of working hours. We have previously provided information about these changes here The right to disconnect (7 March 2024) and here The right to disconnect (12 Feb 2024).

Section 333M of the Fair Work Act 2009 (Act) will provide employees with a ‘right to disconnect’, which will allow them to:

• Refuse to monitor, read or respond to contact or attempted contact from an employer outside of their working hours

• 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 their working hours.

However, any refusal must not be unreasonable. What constitutes ‘unreasonable’ is not limited, but under the Act the following must be considered when determining if a refusal is unreasonable:

• the reason for the contact

• how the contact is made, and level of disruption caused

• the extent of compensation for the employee remaining available to perform work during the period of contact or for working additional hours

• the employee’s role and level of responsibility

• the personal circumstances of the employee (including family or caring responsibilities).

The right to disconnect under section 333M of the Act will not apply to small businesses (business employer fewer than 15 employees) until 26 August 2025.

In addition, all Modern Awards will be required to have a right to disconnect term included by 26 August 2024.  The Fair Work Commission published a draft term for Modern Awards on 11 July 2024, but has not yet published the final version or versions to be incorporated into Awards.

We will provide further information on specific Awards that apply to our clients once they have been updated. In the meantime, if you have any questions regarding the right to disconnect, please contact us by email to enquiry@cer.catholic.org.au or by phone on 02 9189 5999.