Understand the new right to disconnect laws

In less than a month, one of the most controversial changes coming out of the Closing Loopholes reforms, the right to disconnect, will commence.

Starting 26 August 2024 (and on 26 August 2025 for employees of small business employers), employees will have the right to switch off and ignore certain messages or communication sent to them outside of working hours (calls, text messages, emails etc.).
 
With technology making it easier than ever to contact employees and the Fair Work Commission recently releasing its draft ‘right to disconnect’ clause for modern awards, there is no better time to begin preparing for this change, by understanding what it means as an employer and putting in place plans to ensure this new legal right is navigated effectively.
 

What is the right to disconnect?

The new right to disconnect provides employees with the right to refuse to monitor, read or respond to contact, or attempted contact from:

• their employer outside of the employee’s ‘working hours’ unless the refusal is unreasonable and/or
• from a third party if the contact or attempted contact is related to their work and is outside of the employee’s ‘working hours’ unless the refusal is ‘unreasonable’.

In practice, this means that employees will be entitled to ignore calls, emails, text messages and other forms of contact from their employer and clients, which are received before their working day commences and/or after it ends unless doing so would be ‘unreasonable’. Importantly, however, there is no prohibition on employers contacting an employee after hours.
 
In determining whether a refusal is unreasonable, a range of factors relevant to the working relationship must be considered including:

• the reason for the contact or attempted contact;
• how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
• the extent to which the employee is compensated:
  • to remain available to perform work during the period in which the contact or attempted contact is made; or 
  • for working additional hours outside of the employee’s ordinary hours of work; 
• the nature of the employee’s role and the employee’s level of responsibility; and
• the employee’s personal circumstances (including family or caring responsibilities).

An employee's refusal to engage with contact will also be unreasonable if the contact is required under Commonwealth, State or Territory law.
 
Accordingly, whether a refusal is ‘unreasonable’ will largely be contextual to individual circumstances; how? when?, why?, who?
 

The right to disconnect and Modern Award covered employees

As part of the Closing Loopholes amendments, all modern awards will have a right to disconnect term incorporated into them by 26 August 2024.
 
The Fair Work Commission is in the final stages of finalising this process and published a draft clause on 11 July 2024, with the final version of the changes due to be published by 23 August 2024.
 
In its current form, the draft award term refers to the legislative right to disconnect and provides that an employer “must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act”. The clause also seeks to clarify the interaction between the new right and a number of specific modern award terms, including overtime provisions, on-call arrangements, maximum daily hours and changes to rosters.
 

A workplace right

The right to disconnect will be a right protected under the 'General Protections' provisions of the Fair Work Act.
 
Whilst employers may still contact their employees outside of their working hours, it will be unlawful for employers to take adverse action (or otherwise discriminate against) an employee because they have lawfully exercised or proposed to exercise their right to disconnect, such as disciplining, dismissing, or not promoting an employee.
 

Disputes about the right to disconnect

The Fair Work Commission is empowered to deal with disputes about the right to disconnect, including making determinations about whether an employee’s refusal is unreasonable.
 
This dispute resolution powers also include a capacity for the Fair Work Commission to make “stop orders” to stop employees from unreasonably refusing contact, or to stop employers adversely treating an employee or requiring them to continue to accept work-related contact (when an employee’s refusal is not unreasonable).
 
Initially all right to disconnect stop orders and dispute matters will be allocated to the President, who will constitute a full bench to preside over early applications in order that authoritative guidance is available.
 
The Fair Work Commission will also develop a set of guidelines for the new right, however, these will not be released until the Fair Work Commission has dealt with some disputes and better understands the practical issues for which guidance might be required.
 

What this means for employers

Before the right to disconnect laws commence employers should carefully consider whether it is appropriate to expect employees to monitor and respond to communication outside of their working hours considering their industry, the tasks of their employees and how much employees are paid. For some employers, this may mean adjusting expectations when contacting employees after hours, especially for those employees who are less experienced or hold junior positions within a business.
 
Some additional steps employers might want to consider in light of the new right to disconnect include:

• Consider the forms of outside working hours communications you currently use in your business and whether these could be considered to be ‘unreasonable’ by an employee and how you will challenge or otherwise work around this if it is unreasonable.
• Managers and key decision makers in an organisation should be educated on the new right to disconnect and how the new right interacts with the general protections provisions in the Fair Work Act.
• Employers should create policies and/or guidelines in relation to the right to disconnect. Establishing transparent workplace expectations regarding out-of-hours contact is crucial for ensuring both employees and managers understand their responsibilities under the new legislation. Such guidelines and policies should clearly state the circumstances and methods by which out-of-hours communication with employees should occur.
• Review and update employment contracts to ensure that if an employee is being paid above a minimum award rate, part of their remuneration is in contemplation of outside hours communication. For non-award covered employees who are paid a salary, further details should be provided around what ‘reasonable and additional hours’ actually consist of, including clearly linking remuneration to the requirement to attend to work related contact outside usual hours from time to time.
• Set clear expectations from the beginning when entering arrangements/relationships with clients in relation to the right to disconnect. This should include ensuring that they are made aware that employees may refuse to monitor, read or respond to contact that is made after hours. This could be done by including a term/clause that explicitly outlines the right to disconnect legislation in the initial terms of engagement with the client (e.g. in a contract for services).
• Encourage managers to respect employees' non-work hours by limiting or avoiding unnecessary contact outside of their working hours
• Implement a procedure for employees to follow if they consider that they have concerns that their manager/supervisor is contacting them unreasonably outside of their working hours.