The media has made a lot of noise about the right to disconnect since the provisions were introduced through the “Closing the Loopholes” legislation. However, many employers and employees remain ‘in the dark’ about the effect of the provisions that will soon be implemented.
Key take-outs
- It is a right to disconnect, not a blanket rule that employees must disconnect and that employers cannot contact employees outside of normal work hours;
- Employees can choose not to exercise their right to disconnect from their employers and third parties in relation to their work;
- Employers and employees have an obligation to try to resolve disagreements before escalating dispute;
- Some awards have provisions that affect the right in a way that does not make it an absolute right;
- There may be agreed contractual terms that limit the effect of the right to disconnect;
- The provisions protect an employee from adverse action from their employer if the employee chooses to exercise their right to disconnect.
The ‘right to disconnect’ provisions of the Fair Work Act 2009 (the FW Act) protect employees covered by the FW Act who refuse to monitor, read or respond to contact or attempted contact outside their working hours. There is an exemption to the right if their refusal is unreasonable.
The right to disconnect starts on:
- 26 August 2024 for non-small business employers (15 or more employees) and their employees; and
- 26 August 2025 for small business employers (less than 15 employees) and their employees.
What is the right to disconnect?
Employees will soon have a formal workplace right to disconnect from their work outside their working hours. This means that they will be allowed to refuse to monitor, read or respond to contact or attempted contact from their employer, or another person if the contact is work-related (for example, work-related contact from clients or members of the public).
Modern Award term
The right will also be documented as a new term in the modern awards to allow award-covered employees to disconnect from work outside of their rostered work hours. Those changes will be published by 26 August 2024. The Fair Work Commission (FWC) will also release written guidelines about how the right to disconnect will operate.
When will an employee’s disconnection be unreasonable?
An employee’s refusal to monitor, read or respond to contact or attempted contact (disconnection) will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.
The right may be affected by other award terms, including:
- overtime arrangements;
- contractual and award based requirements to work reasonable additional hours;
- recall to duty and minimum pay periods;
- on call provisions;
- telephone allowance;
- broken shifts;
- span of hours;
- maximum daily hours;
- averaging of hours;
- changes to rosters.
If disputed contact or attempted contact is not required by law, certain matters must be considered when deciding whether the employee’s disconnection is unreasonable, such as:
- the reason for the contact (or attempted contact);
- how the contact (or attempted contact) is made and how much disruption it causes the employee;
- any compensation (monetary or non-monetary) the employee receives;
- to be available to work when the contact is made; or
- to work outside their ordinary hours;
- the employee’s role and their level of responsibility; and
- the employee’s personal circumstances, including family or caring responsibilities.
Role of the FWC
The FWC will have the ability to deal with issues arising from the right to disconnect in two ways. They will be able to resolve disputes about the right to disconnect, that the employer and employee haven’t been able to resolve at the workplace. They will also have the ability to deal with general protections claims brought by employees who have been dismissed because they exercised their workplace right to disconnect.
Disputes
Employers and employers can apply to the FWC for help to resolve disputes about the right to disconnect. The first step is to try to resolve the dispute directly with the employee by discussing it with them at the workplace. The parties (employer and employee) must try to resolve the dispute at the workplace before an application can be brought in the FWC.
When you make a dispute application, you can ask the FWC to:
- make a stop order;
- hold a conference or arbitrate to try to resolve the dispute; or
- do both of the above.
Stop orders
The FWC can make orders to stop:
- an employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact, or
- an employer from:
- continuing to require an employee to monitor, read or respond to contact, even though the employee refuses, or
- taking action against an employee because they believe the employee’s refusal is unreasonable.
Dealing with the dispute in other ways
The FWC will first conduct a conference to see if they can resolve the case. If the parties agree, a Commission Member can arbitrate an outcome and issue any order they consider is appropriate in the circumstances.
General Protections
The right to disconnect is a designated workplace right under the FW Act. An employer cannot take adverse action against an employee because of their rights at work, including the right to disconnect. The full scope of rights considered can be found at sections 341 of the FW Act and the adverse actions are listed in sections 342 to 345. Adverse action can include being dismissed, demoted or overlooked for promotion.
If an employee believes their employer has taken adverse action against them in relation to their exercise of their right to disconnect, they will be able to apply to the FWC for help under the general protections laws.
Employees and employers involved in a dispute about the right to disconnect can ask another person, or an industrial association, to support or represent them to resolve the dispute at the workplace, apply to the FWC for help, and while the FWC deal with the dispute.
Parties must seek permission if they want a lawyer or paid agent to represent them in a conference or hearing.
Practical considerations
The right to disconnect is not a ‘blanket’ ban on out of hours communications between employers and employees. Employees may be happy to receive and respond to contact outside of their normal work hours. No one will be policing those activities. The intent of introducing the workplace right was to alleviate employees of the pressure of having to remain connected to work at all times or to have to deal with harassing conduct and unreasonable demands from employers during non-working hours.
It remains open for employers to review and restructure their communications methods to comply with the right to disconnect, without waiting for employees to invoke their rights. Equally, employers and employees may reach a mutually satisfactory agreement about communication outside of work hours to avoid future disputes.
Where employers may face difficulties is if an employee or group of employees instruct their employer that they wish to exercise their right to disconnect. To disregard the employee decision or take retributive action against the employee’s enforcing that right may lead to a dispute before the FWC and potential costly legal proceedings.
