Let’s Recap the ‘right to disconnect’

As discussed in our previous article, the ‘right to disconnect’ entitles an employee to ‘refuse to monitor, read or respond to contact or attempted contact’ from their employer or third parties (such as clients) outside of their working hours, unless it is unreasonable to do so.

Dispute resolution mechanisms (including in the Fair Work Commission) are part of this reform, which complements the rarely-engaged National Employment Standard intended to protect employees from being unreasonably required to work ‘additional hours’.

What are the Upcoming Changes?

From 26 August 2024:

• employees of non-small business employers will be able to exercise and enforce the right to disconnect;
• the right to disconnect will become a ‘workplace right’ within the meaning of the Fair Work Act 2009 (Cth) (FW Act) and
• a right to disconnect term will be inserted into modern awards.

The above changes will apply to employees of small business employers (defined as having fewer than 15 employees) from 26 August 2025.

Dispute Resolution

The Fair Work Commission will have the power to resolve disputes relating to the right to disconnect if they cannot be resolved at the workplace level. This may include requiring an employee to cease refusing contact outside their working hours or directing an employer not to take disciplinary or other action against an employee for doing so.

Although the Fair Work Commission has no power to make orders for compensation, breaching its orders may result in a civil penalty of up to $19,800. Employers and individual employees involved in contraventions may be liable for such civil penalties.

Workplace Right

The recognition of  the right to disconnect as a workplace right means that an employer is prohibited from taking adverse action (such as issuing a warning or terminating an employee’s employment) because of an employee’s exercise of the right to disconnect.  This change adds to the complexity stemming from an array of workplace rights and protected attributes introduced in recent years, including pay secrecy, subjection to family and domestic violence, breastfeeding and intersex status.

Modern Award Changes

Although the consultation process relating to the modern award right to disconnect clause is ongoing, the Fair Work Commission has published a draft term relevant to the Business Equipment Award 2020.  Relevantly, the draft term:

• summarises provisions relevant to the right to disconnect found in the FW Act;
• clarifies that it is only applicable to small business employers and their employees from 26 August 2025, with the term applying to all other employers and employees from 26 August 2024;
• provides that an employer must not directly or indirectly prevent an employee from  exercising their right to disconnect under the FW Act; and

The draft term clarifies that an employer is not prevented from contacting employees outside of working hours to notify them of an emergency roster change or a recall to work under the relevant provisions of the Business Equipment Award 2020. 

The draft term also provides that an employer is not prevented from requiring an employee to monitor, read or respond to contact from the employer outside of their working hours if they have been paid a stand-by allowance under the relevant clause and the employer’s contact is to notify the employee of the requirement to attend or perform work.  This contact needs to be in accordance with the usual arrangements for such notifications.

Most modern awards include provisions relevant to the industry or occupation they are intended to cover, meaning that the right to disconnect clause inserted into other modern awards is likely to differ from the draft term.  Civil penalties may be imposed on employers and individual employees involved in contraventions of modern awards, including the upcoming right to disconnect term. 

What Steps Should You Take?

Employers should consider their workplace's needs and employees' working patterns when planning for and addressing the right to disconnect. If employees do not need to work outside their working hours or doing so is a rare occurrence, the right to disconnect is unlikely to cause significant disruption to an employer’s operations.

If after hours availability and client or employer contact is an expectation, employers should:

• ensure human resources employees and managers receive appropriate training to understand the right to disconnect.
• evaluate employees’ working patterns and consider whether contact or work undertaken outside working hours is appropriate.
• depending on the prevalence of contact or work outside of working hours, consider publishing guidelines for managers to consider before contacting an employee after hours and
• review position descriptions and employment contracts in order to account for after-hours contact and work as well as relevant changes to modern awards.

It is already essential that employers monitor and assess employees’ working patterns as part of their risk management framework.  This is required to manage psychosocial hazards in the workplace, which have been expressly recognised by safety regulators to include “role overload”. 

If you have questions about this article or the ‘right to disconnect’, contact Holman Webb Lawyers Workplace Relations team. They can assist employers in navigating the Federal Government’s recent reforms by reviewing employment agreements and policies.