The recent passage of the Federal Government’s Closing the Loopholes Bill (No. 2) introduced significant and controversial reforms, including an alternative casual conversion pathway, minimum standards for gig economy workers, and the so-called ‘right to disconnect’.

What is the Right to Disconnect?

The right to disconnect empowers workers to refuse to monitor, read or respond to contact or attempted contact (contact) by their employer outside of working hours. It also allows workers to refuse contact from third parties (such as customers) outside of working hours, where that contact relates to their work. 

Are there Exceptions?

A worker cannot unreasonably refuse contact, and in assessing what is reasonable, it will be necessary to consider:

• the reason for the contact;
• the method of contact and the degree of disruption caused to the worker by that contact;
• the extent to which the employee has received monetary and non-monetary compensation to perform work during the period in which they are contacted or for working reasonable additional hours;
• the nature of the role and level of responsibility; and/or
• the employee’s personal circumstances, including any family or caring responsibilities.

How to Resolve a Dispute

When there is a dispute, there must first be an attempt to resolve it at the workplace level.  If that fails, the Fair Work Commission has the power to deal with the dispute, including by making orders requiring an employee to cease refusing contact or by directing an employer not to take disciplinary or other action against an employee for refusing contact. There is no power to make orders for compensation, but breaching the Commission’s orders can result in a pecuniary penalty of up to $18,780.

Effect on Other Employment Rights & Entitlements

The right to disconnect complements other rights and entitlements under modern awards and the Fair Work Act 2009 (Cth) (FW Act), which regulates employees’ working hours.  This includes the right of a full-time employee under section 62 to refuse to work more than 38 hours per week unless those additional hours are reasonable. 

The right to disconnect is also expressly a workplace right, which expands the grounds upon which an employee can bring a General Protections claim.  This continues the recent expansion of the General Protections regime to include gender identity, intersex status, breastfeeding and disclosing or refusing to disclose remuneration information.

Key Takeaways

Employers should proactively review employment agreements to consider whether contact outside of working hours should be contemplated.  Policies may also be amended to communicate an employer’s expectations regarding out of hours contact by colleagues and third parties such as customers.

Holman Webb’s Workplace Relations Group can assist employers in navigating the Federal Government’s recent reforms by reviewing employment agreements and policies.

If you have any questions about this article or need assistance reviewing employment agreements, please do not hesitate to contact Robin Young or Daniel Iminjan from our Workplace Relations team.