Closing Loopholes: Right To Disconnect

The Australian Government recently announced additional workplace law amendments as part of its “Closing Loopholes” changes. One of these amendments includes a right for employees to “disconnect”.

What Do The New Amendments Mean?

At a high level, the right for employees to disconnect will inform how an employer and employee interact outside of normal working hours. In effect, employees will have a right not to contact or respond to their employer outside of their usual working hours, unless not responding would be considered unreasonable.  This means that employees may refuse to monitor, read, or respond to contact from their employer or third party when they are not being paid to work.

Whether an employee’s refusal is unreasonable will depend on a range of factors which may include:

• If the employee receives compensation to be available or work additional hours
• The nature of the employee’s role and responsibilities
• The particular reason for the contact
• Any personal circumstances of the employee, for example, family and caring responsibilities

There is no obligation on employers or third parties to limit contact or attempt to contact employees outside of their usual working hours. Rather the protection is for employees who have reasonably “switched-off” and do not respond to the contact or attempt to contact.

As with most workplace disputes, if an issue arises, it is expected that parties will make an attempt to resolve it at a workplace level. If the dispute cannot be settled, a party may make an application to the Fair Work Commission (“FWC”) to resolve the issue. The FWC will attempt to resolve the dispute by conciliation, mediation, making a recommendation, or expressing an opinion. An outcome may involve the FWC issuing an order to stop employers from requiring employees to accept unreasonable contact or require an employee to respond and accept reasonable work-related contact.

Given the ability to refuse contact or attempted contact will be a workplace right, general protections in the Fair Work Act will apply. You can read more about general protections here.

The FWC is in the process of updating the modern awards to include the right to switch off protection and these changes will come into effect from:

• 26 August 2024 for non-small business employers (15 or more employees)
• 26 August 2025 for small business employers (less than 15 employees)

How Can I Prepare For These Changes?

To prepare for these changes, employers should have discussions with their employees to set expectations about out-of-hours contact. The purpose of this workplace right is to ensure that employees have time to disconnect from the workplace, outside of their work hours, and when they are not being paid to work. When setting these expectations employers should consider what is reasonable given the needs of the workplace and the particular role held by an employee.

If you need assistance or advice about the new right to disconnect protections contact one of our experienced employment lawyers in Townsville.