Key Points of the Amendment
Employee Rights
Employees are permitted to disengage from work-related activities during their non-working hours. The change provides that an employee may refuse to:
- Monitor, read or respond to contact or attempted contact from an employer (or third party relating to their work) outside of the employee’s working hours unless the refusal is unreasonable.
This right is a workplace right within the meaning of Part 3-1, General Protections of the FW Act.
Determining What is Reasonable
It is only when there are unreasonable expectations of a response out of hours that it becomes a problem.
Extract from Federal Register of Legislation – Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024:
- Without limiting the matters that may be taken into account in determining whether a refusal is unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
- 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;
- the employee’s personal circumstances (including family or caring responsibilities).
- For the avoidance of doubt, an employee’s refusal to monitor, read or respond to contact, or attempted contact, from their employer, or from a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.
Other factors can be considered, like patterns of behaviour.
Refusal to respond if the purpose for the contact is required under law is deemed unreasonable.
The right to disconnect does not mean that the employee is allowed to ignore communication or that the employee should not receive communication. The employee is allowed to raise concerns if the employer is making unreasonable requests for a response.
Implementation
Employers and employees should establish an understanding of what is reasonable and what the expectations are at the commencement of the engagement of employment and probably review that annually and also at any change of job description.
The “Right to disconnect” will be brought into all Awards, however our recommendation is that provisions be brought into Employment Agreements and that levels and methods of communication be discussed and understood by both employers and employees.
For employees, it means having the freedom to disconnect from work outside of their designated hours. This promotes better mental health and overall job satisfaction. It allows them to recharge and be fully present when they return to work, ultimately enhancing productivity and creativity.
Employers also benefit as they can cultivate a more engaged and motivated workforce by acknowledging the importance of personal time. By respecting boundaries and considering the impact of after hours communication, employers demonstrate their commitment to employee wellbeing, which can lead to higher retention rates and a positive company culture.
By embracing open communication, setting clear expectations, and prioritising mutual respect, both employees and employers can navigate this change with confidence and optimism.
Application to Modern Awards
The Fair Work Commission (FWC) will play a pivotal role in this amendment, incorporating industry-specific right to disconnect terms into modern awards through consultation with businesses and employees. This ensures that the terms reflect the realities of different occupations and industries.
Dispute Resolution
If disputes regarding the right to disconnect cannot be resolved at the workplace level, parties can seek assistance from the FWC for a Stop Order. This enables employees to request that their employer cease unreasonable contact, and prevents disciplinary action against them for reasonable refusal. Similarly, employers can request an order for employees to stop unreasonably refusing to engage in work-related communication.
Violating a Stop Order regarding the right to disconnect could result in civil penalties under the Fair Work Act. However, the government introduced a bill on 25th February 2024 (The Fair Work Amendment Bill 2024), ensuring that such breaches will not lead to criminal penalties.
What Practical Steps Can Employers & Business Owners Take Now?
Proper approaches and processes can effectively manage the implementation of the new legislation. In many respects, these laws complement existing obligations that businesses have to safeguard the psychological well-being of their employees. Even if you don’t employ anyone at this stage of your business, this may change in time, and the principles of safeguarding will need to always be considered under these laws.
Employers should proactively review and update their work practices and policies to align with the new regulations. Providing managers with training on the nuances of the right to disconnect is essential. Moreover, employers must handle performance management processes with sensitivity, considering the implications of the new right.
The new law has resulted in many employers seeking guidance on responding to the changes. Please see the checklist below for some practical steps employers can take now in preparation for the start of the changes.
But a determination of unreasonable contact should be discussed with the employee and employer. The right to disconnect is not that the employee is allowed to ignore communication, nor is it that the employee should not receive communication. The essence of the law is that the employee may refuse.
Source: Lexology – Preparing for… the “Right to Disconnect”
ICB recommends the Right to disconnect fact sheet from the Department of Employment and Workplace Relations as a great resource to generate conversations with your bookkeeper.
