Right to Disconnect: Australia Empowers Workers In Closing Loopholes Bill

What is the right to disconnect?

The right to disconnect is the legal right for employees to refuse to monitor, read or respond to contact, or attempted contact, by employers after working hours, provided the refusal is not unreasonable.

Under the Fair Work Act 2009 (Cth), employees can ignore phone calls, emails, text messages and other work-related communication. The law does not prevent employers from sending emails outside of an employee's working hours. However, it will protect workers who ignore unreasonable contact by their employer.

The Closing Loopholes Bill is awaiting royal assent. The expected commencement date for employees' right to disconnect is 26 August 2024 (26 August 2025 for small businesses).

Reasonable contact

In order to determine what contact is considered reasonable, the new legislation amendment takes into consideration:

• the reason for contacting an employee after work hours
• the mode of contact and degree of disruption this causes
• if the employee is compensated to perform work outside of normal hours
• the nature of the employee's role and level of responsibility
• the employee's personal circumstances, including family or caring responsibilities.

Exemptions

Small business employers will be exempt from provisions for 12 months after the commencement of the new laws.

An employee's refusal to monitor, read or respond to contact, or attempted contact, by their employer will also be considered unreasonable if the contact is required under Commonwealth, State or Territory law. For example, exemptions will apply to the operations of the Australian Federal Police, the Australian Defence Force and other operations pertaining to national security.

How will the new laws be enforced?

Disputes

The Fair Work Commission (FWC) plays a central role in enforcing Australia's new laws regarding the right to disconnect. In instances where there's a disagreement between an employer and an employee over monitoring, reading, or responding to communications outside of ordinary hours of work, the FWC is the authority that intervenes. It has the power to issue stop orders.

Stop orders

A stop order is designed to prevent employers from taking any adverse action against employees who exercise their right to disconnect. If an employer attempts to penalise, dismiss, or otherwise disadvantage an employee for not engaging in work-related communications after hours, the FWC can step in to protect the employee's rights.

Process

The process should begin with attempts to resolve the issue at the workplace level through direct discussions. If these discussions fail, either party can escalate the matter to the Fair Work Commission. The FWC can appoint orders that not only stop employers from taking punitive actions but also aim to mediate a fair resolution that respects the employee's right to disconnect while ensuring business needs are considered.

Information for employers

The introduction of the right to disconnect in Australia necessitates significant adjustments from employers to the Bill. Here are important points for employers to consider:

• Timing: The right to disconnect will commence 6 months after the Bill receives Royal Assent. Employers should use this period to prepare and adapt their workplace policies and practices accordingly.
• Training and awareness: Employers should make managers and employees aware of the new measures. For managers, education should focus on respecting boundaries and the legal implications of the new right. Employees should be educated on their rights and the measures the organisation is taking to support those rights.
• Policy development: Developing clear policies around the use of work technology outside agreed working hours is essential. These policies should provide guidelines on acceptable practices and help foster a culture that respects personal time.
• Feedback mechanisms: Implementing anonymous reporting tools can help identify and address potential issues early on. These tools facilitate a supportive environment where employees feel their concerns are heard and valued.
• Scheduling communications: Encouraging employees to schedule emails and tasks during agreed working hours can help minimise after-hours disruptions.