What you need to know

With the increase of work from home arrangements, lines between home and work become blurred with more employees are undertaking work outside of their usual work hours. Under the Fair Work Act 2009 (Cth), employees now have a ‘right to disconnect’ from the workplace outside of their work hours. However, this provision does have important limitations as well as the ability for employees to lodge a dispute in the Fair Work Commission.

The Closing Loopholes No 2 Act received Royal Assent on 26 February 2024 which means that it has come into effect. The provisions for the ‘right to disconnect’ come into effect six months after Royal Assent at the end of August. This article will help you understand what this means and what your organisation should do to prepare for these changes.

What is the right to disconnect?

s 333M provides that an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer, or work-related third party, outside of the employee’s working hours unless the refusal is unreasonable. In determining whether a refusal is unreasonable, certain matters must be taken in to account including:

1. the reason for the contact,

2. method of contact and the level of disruption causes the employee,

3. the extent to which the employee is compensated to be available or to work additional hours,

4. the nature of the employee’s role and their level of responsibility,

5. the employee’s personal circumstances including family and caring responsibilities.

This means that an employee holds a right to refuse out of hours contact and that right can only be displaced where the employer can demonstrate the unreasonableness of any refusal by reference to the criteria above. This creates a reverse onus on the employer to demonstrate that the employee’s refusal is unreasonable rather than the employee demonstrating that the out of hours contact is unreasonable.

The right to disconnect also constitutes a workplace right for the purpose of general protections, and employees may lodge a dispute in the Fair Work Commission to resolve matters relating to the right to disconnect.

Next steps for employers

There are some steps you can take to mitigate the impact of the ‘right to disconnect’ before it comes into effect in August 2024. If an employee’s role may require out-of-hours contact, you should ensure that this is set out in their position description and contract of employment. You should also establish protocol for out-of-hours contact to avoid it being deemed unreasonable. This could include protocol on what kind of matters may require out-of-hours contact, appropriate methods for contact and managers with delegated responsibility to make out-of-hours contact.