What do employers need to know about the new workplace “right to disconnect”?

The Federal Government recently added a new workplace right to the Fair Work Act, which comes into operation on 26 August 2024. Employees will have the right not to be adversely treated (e.g. disciplined) for not responding to attempts by their employer or third parties (such as clients or suppliers) to contact them outside their normal working hours.

The new laws are aimed at preventing employers from contacting employees outside work hours, and setting rules around requirements to monitor, read or respond to emails, telephone calls or any other kinds of communication from an employer outside an employee’s working hours. An exception applies in circumstances where it is an emergency or genuine welfare matter, or the employee is in receipt of an availability allowance for the period in which the contact is made.

When introducing this new right, the Federal Government commented on how the continuous connection to work has become normalised as part of a growing trend known as ‘availability creep’, and how this was accelerated by the shift toward ‘work from home’ during the COVID-19 pandemic which further blurred the line between work and home.

What does this mean (or not mean) for employers?

The new right does not mean that employees cannot be required to be contactable or can refuse to respond to all calls or messages outside work hours. It means that if they choose to do so, they can refuse, so long as their refusal is reasonable. The following should be taken into account in assessing whether a refusal to respond is reasonable:

• the reason for the contact or attempted contact;
• how the contact was made and the level of disruption caused to the employee;
• the extent to which the employee is paid additional compensation for remaining available after hours or for working outside ordinary hours;
• the nature of the employee's role and level of responsibility; and
• the nature of the employee's personal circumstances.

What if there’s a dispute about what is ‘reasonable’?

If an employer takes or intends to take disciplinary action because an employee has refused to monitor, read or respond to contact or attempted contact, and the employee contends the refusal was reasonable, an application may be made to the Fair Work Commission (FWC) to resolve the dispute.

The FWC will have powers to issue 'stop' orders that may apply to the employee to stop (refusing contact) or to the employer to stop (taking certain disciplinary actions).

The Federal Government has stated that the right to disconnect is not intended to prevent employers contacting employees outside of hours to check shift availability, or to deal with emergencies or critical work. Those exceptions will be clarified in new terms shortly to be included in all Awards and then over time through FWC and Court decisions.

The impact is likely to be less significant for managerial and professional employees given their seniority and remuneration. For employees paid 'on-call' or 'stand-by' allowances or similar arrangements, the right is also likely to have little impact.

As always, if you experience any workplace queries, questions or concerns, please get in contact as we’re here to help.