The new right to disconnect for employees: are you ready?

What you need to know

• From Monday 26 August 2024, employees will have a new but limited right to disconnect outside work hours. The provisions will not apply to small business employers until 26 August 2025.
• An employee's refusal to monitor, read or respond to out of hours contact cannot be unreasonable, taking into account a number of factors including pay and seniority.
• Employers will be under a corresponding obligation not to treat an employee detrimentally for a reasonable refusal to monitor, read or respond to out of hours contact.
• All modern awards will also be varied to include a right to disconnect term.

What is the right to disconnect?

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 amended the Fair Work Act 2009 (Cth) to include a new right to disconnect for employees.

In brief, the right to disconnect allows employees to refuse to monitor, read or respond to contact from their employer or third parties (such as customers, clients or suppliers) outside their working hours, unless their refusal is unreasonable. Although the term "contact" is not defined, it no doubt includes all the usual modes of communication like emails, phone calls, text messages or WhatsApp messages.

"Working hours" is also not defined, but it is a different term to the Fair Work Act's 38 "ordinary hours" each week. Sensibly approached, we think working hours are those ordinary hours plus the reasonable additional hours contemplated by the Act. Expectations about working hours and the requirements of a role may be set by employment contracts, position descriptions, awards and enterprise agreements, and employment policies and practices.

The right to disconnect does not prohibit employers from contacting employees outside of work hours. The right is, however, a "workplace right" for the purposes of the general protections provisions of the Fair Work Act 2009. This means that employers must not take adverse action against an employee (such as dismissing or taking disciplinary action against them) because they exercise their right to refuse to monitor, read or respond to out of hours contact.

Will all employees have a right to disconnect?

Yes, all national system employees will have a right to disconnect. However, the nature of an employee's role and the employee's level of responsibility will be relevant in determining whether a refusal to respond to out of hours contact is unreasonable.

When will employees have a right to disconnect?

Employees of non-small business employers will have a right to disconnect from Monday, 26 August 2024. The new provisions will not apply to small business employers and employees until 26 August 2025.

Modern awards will also be varied with effect from 26 August 2024 to include a term that provides for the exercise of an employee's right to disconnect. The Fair Work Commission (FWC) intends to publish final determinations varying all modern awards by Friday 23 August 2024. The terms will not apply to small business employers until 26 August 2025.

Employers should also be aware that, where an applicable enterprise agreement provides for a right to disconnect that is more favourable than the Act, then that term continues to apply.

When will an employee's refusal to respond to contact be unreasonable?

Under the new provisions, the following factors must be taken into account in assessing whether a refusal to respond is unreasonable:

• the reason for the contact;
• how the contact was made and the level of disruption caused to the employee;
• the extent to which the employee is provided additional compensation for remaining available after hours (at the time the contact was made) or for working additional hours outside of ordinary hours (generally);
• the employee's role and level of responsibility; and
• the employee's personal circumstances (including family and caring responsibilities).

Other factors may also be relevant. These may include, for example, the terms of an employee's employment contract, the nature of the employer's business, and whether, in particular circumstances, an employer provided sufficient notice to an employee of the requirement to respond to out of hours contact.

The FWC is required to make guidelines about the new right to disconnect, and these guidelines will no doubt assist both employers and employees to better understand when out of hours contact may be considered unreasonable. In a recent Statement, the President of the Commission indicated that the Commission does not intend to make any guidelines until it has dealt with at least some disputes concerning the right's operation. However, the Commission has released some guidance on its website this week.

The FWC has power to deal with disputes over the right to disconnect, for example, by issuing 'stop' orders to the employer or the employee. Further information about these powers can be found here.

What should employers do now?

• Assess how hours of work and "availability creep" can impact on workplace health and safety, look holistically at health and safety programmes to ensure they facilitate service delivery expectations while still supporting a reasonable right to disconnect and other wellbeing measures.
• Review the new right to disconnect term included in any applicable awards (noting that the FWC will publish final determinations varying all awards by Friday 23 August 2024).
• Identify key roles where contact outside of working hours is common and consider how the principles about reasonable exercise of the right to disconnect will apply in those roles.
• Engage in discussions with employees about out of hours contact and set expectations that suit your business and particular roles; communicate with employees about the situations where you anticipate that out of hours contact will be required, so that managers and employees can discuss reasonable ways to minimise the disruption to personal lives.
• Review template contracts of employment, and if necessary, make amendments to clearly define the nature of the role to be performed, the hours to be worked, and to recognise where remuneration compensates employees for monitoring, reading and responding to contact outside hours.
• Review workplace policies, where necessary, to ensure that they (i) clearly delineate what out of hours contact is considered reasonable for different roles; and (ii) include guidelines for considering and responding to employee concerns about out of hours contact.
• Review job and position descriptions to ensure that they clearly outline expectations for reasonable out of hours contact.
• Conduct training for supervisors and managers to ensure that they understand the new right to disconnect, when out of hours contact may be considered unreasonable, and the obligation not to take adverse action against an employee who exercises the right (e.g. by dismissing or disciplining the employee).
• Consider how to manage the demands and obligations of third parties (such as clients and suppliers) to support compliance and better ensure the protection of the right for your employees and theirs.

Authors: Jennie Mansfield, Partner; Andrea Motbey, Counsel; Jacqueline Massey, Senior Associate and Gabriella Lubrano, Lawyer.