A New Workplace ‘Right to Disconnect’ for Employees
From 26 August 2024, employees will have a legal right under the Fair Work Act 2009 (Cth) to refuse to monitor, read or respond to contact or attempted contact from their employer outside of their working hours, unless the refusal is unreasonable (the Right). The Right also applies to any contact or attempted contact from third parties that relates to work matters made outside of the employee’s work hours.
The Right contemplates calls, texts, emails, Microsoft Teams messages and any other unreasonable communication by an employer after hours. Small business employers will be exempt from the operation of the Right provisions for 12 months from their commencement date, up to 26 August 2025.
The Meaning of ‘Unreasonable’ Refusal
Several factors must be considered when determining whether an employee’s refusal is unreasonable. This includes:
- The reason for the contact;
- Whether the employee is compensated or paid extra for:
- Being available to be contacted to perform work within a specific period, or
- Working additional hours outside their ordinary hours of work;
- The nature of the employee’s role and level of responsibility;
- The employee’s personal circumstances including family or caring responsibilities; and
- Other matters may also be considered.
In addition to the Right, an employer will also be prohibited from taking adverse action against an employee who also exercises the Right. In these circumstances, any adverse action by an employer may give rise to general protections proceedings by an employee.
Employer Responsibilities
- Guidelines and policies: Employers should create and enforce clear guidelines that define what constitutes reasonable after-hours communication. These guidelines should specify the circumstances under which employees can be expected to respond to work-related matters outside regular hours.
- Training and awareness: Employers must ensure that both management and employees are aware of these new rights and obligations. This includes training on when after-hours communication is deemed necessary and how to handle such situations.
- Workplace culture: The legislation encourages the development of a workplace culture that respects employees’ personal time. Employers should foster an environment where the Right is respected and supported.
If you have any questions about the Right and what the new provisions could mean for you or your business, please do not hesitate to contact Nick Stevens, Josh Hoggett, Evelyn Rivera or Ayla Hutchison.
