Employment Law: The Right to Disconnect

The recent changes to the Fair Work Act 2009 (Cth) (the ‘FW Act’) have introduced a new ‘right to disconnect’ for employees. The changes recognise the changing nature of employment, with more employees performing their roles remotely, and the line between an employees work and home life becoming increasingly blurred.

In short, the right to disconnect allows employees to refuse to monitor, read or respond to work related contact from their employer or third parties (such as clients or customers) outside their working hours, unless their refusal is unreasonable.

The term ‘contact’ will encompass modes of communication such as emails, text messages or phone calls. The term ‘working hours’ is not defined, but it is expected that the term encompasses not just an employee’s ordinary full time or part time hours (i.e. 38 hours per week for full time employees) but also any reasonable additional hours contemplated by an employment contract. What is ‘unreasonable’ will be assessed objectively.

This means consideration of factors such as:

– The urgency and timing of the contact: Can the employer wait until working hours to make the contact, or does it require an immediate response? What is the level of disruption of the contact? An email shortly after working hours are finished is more likely to be considered reasonable than a phone call.

– Nature of employer’s business: Does the industry that an employer operates in mean that out of hours contact is unavoidable or part of the requirements of the role?

– Pay and seniority of the employee: Contact made to a senior employee with a greater level of responsibility is more likely to be reasonable than contact made to a junior employee. Similarly, if being contactable outside of working hours is part of an employee’s remuneration, then this is more likely to be considered reasonable.

– Personal circumstances: What are the personal circumstances of the employee that may make the contact unreasonable? For instance, does the employee have caring or family responsibilities, or are there flexible working arrangements in place? Is the employer aware of any other personal circumstances that might make the contact unreasonable?

Important things to know:

– The changes apply to all national system employees, which includes the Commonwealth public sector.

– The changes do not apply to Queensland public service employees.

– The changes apply from 26 August 2024, however for small business employers/employees, the changes won’t come into effect until 24 August 2025.

– For employers, there may need to be a need to renegotiate the terms of an employee’s contract if out of contact hours are required as part of an employees role. This will reduce the risk of conflicts with employees about out of hours contact emerging in the future.

– The right to disconnect amounts to a “workplace right” for the purposes of the general protections regime in the FW Act. This means that if an employee exercises their right to disconnect, such as refusing to respond to an email outside of working hours, then the employee cannot take adverse action against that employee because they exercised that right. Adverse action might include disciplining, reprimanding or terminating an employee.