The ‘Right to Disconnect’ has been widely publicised but what does it actually mean for employees and employers? What about staff who need to be “on call” outside normal working hours? What happens if an employer fails to respect the right to disconnect?
The introduction of the right to disconnect marks a significant shift in workplace relations, ensuring that employees can maintain a healthy work-life balance by setting boundaries on work-related communications outside of their ordinary hours. As this workplace right takes effect, it is crucial for both employers and employees to understand and respect these new guidelines.
What is the Right to Disconnect?
Starting 26 August 2024, employees working for businesses with more than 15 employees will have the right to disconnect, meaning they can refuse employer or third-party contact outside of their working hours. This right will extend to employees of small businesses (with 15 or fewer employees) beginning 26 August 2025. Under this policy, employees have the right to decline monitoring, reading, or responding to any contact from their employer or a third party outside of their working hours, unless such refusal is deemed unreasonable. This right also applies to any attempted contact made outside of an employee’s working hours.
When Is Refusal Considered Unreasonable?
A key element of this new workplace right is determining whether an employee’s refusal is reasonable.
The new law provides some guidance as to what matters will be taken into account in assessing whether a refusal is reasonable (e.g. the level of disruption to the employee, the employee’s level of responsibility and, importantly, the extent to which the employee is compensated for being available outside of ordinary hours of work) but ultimately it will be important to see how these matters are applied by the Courts to practical scenarios. From 26 August 2024, all awards will be amended to include a ‘right to disconnect’ provision and additional guidance may also be provided in these amendments.
Employers should evaluate whether contacting employees outside of their ordinary hours is necessary and whether it would be considered “reasonable” based on the criteria outlined above. It will also be important to consider whether any amendments to your standard employment agreements or workplace policies are needed to make sure employees are aware of the level of availability that is expected of them under their current remuneration arrangements.
Understanding Business Hours and Reasonable Additional Hours
Another important thing for employers to be clear on is what an employee’s ordinary working hours are. These hours should be clearly outlined in their employment contract or terms, and may of course differ from the business’s operating hours. For example, a hospitality establishment might operate from 10:00 am to 11:30 pm, but an employee’s ordinary hours could fall within this timeframe without covering the entire span. Therefore, when considering an employee’s right to disconnect, remember that this right applies once the employee has completed their ordinary hours, as stipulated in their roster or employment contract.
Maximum weekly hours are part of the National Employment Standards (NES), which apply to all employees covered by the national workplace relations system, regardless of any award, agreement, or contract. Employers must not request or require an employee to work more than the maximum (38 hours for full-time employees) unless the additional hours are reasonable:
When determining whether additional hours are reasonable or unreasonable, employers must consider the following factors:
- Any risk to employee health and safety;
- The employee’s personal circumstances, including family responsibilities;
- The needs of the workplace or enterprise;
- Whether the employee is entitled to overtime payments, penalty rates, or other compensation for working additional hours, or whether their level of remuneration reflects an expectation of additional hours;
- The amount of notice given by the employer to work the additional hours;
- The amount of notice given by the employee regarding their intention to refuse additional hours;
- The usual patterns of work in the industry;
- The nature of the employee’s role and level of responsibility;
- Whether the additional hours align with averaging provisions included in an applicable award or agreement, or an averaging arrangement agreed upon by the employer and an award/agreement-free employee.
This list is not exhaustive, and employers should take into account all relevant factors concerning their employees. If additional work hours are needed, employers should consider the terms of the Award, and any contact with employees should be based on the specific circumstances that necessitate it. In circumstances where additional advice is required.
Who is covered by the new law?
Any employee of a ‘national system employer’, can seek protection under this new right to disconnect. A national systems employer includes all corporations under Australia’s workplace relations laws and encompasses the majority of businesses within Australia.
What to do if there is a dispute
Where a dispute arises between employer and an employee around the right to disconnect, they must firstly attempt to resolve this dispute within the organisation. This is an essential step before either the employer or employee apply to the Fair Work Commission (FWC) for assistance.
The right to disconnect is expressly designated as a protected workplace right under Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act). Therefore, while the FWC encourages workplaces and employees to work collaboratively to resolve disputes, the FWC also has certain powers to deal with such disputes, for example by making a stop order and/or by holding a conference with the parties to try to resolve the dispute.
In addition to these orders, the FWC has jurisdiction to handle disputes if an application is filed under the General Protections regime. Under this framework, employees who have faced adverse actions, such as dismissal, demotion, or being passed over for promotion, can apply to the FWC for a resolution.
Fair Work Commission Dispute Resolution
The FW Act offers employees both new and existing mechanisms to address disputes over the right to disconnect, including requirements for workplace resolution and the ability to seek intervention from the FWC. In addition to protection and recourse if adverse action is taken against employees for exercising or proposing to exercise their right to disconnect.
New Powers:
In accordance with section 333N FW Act, employees and their employer must attempt to resolve any dispute regarding the right to disconnect at the workplace level. This can involve open dialogue, conferences and forms of mediation. If these efforts are unsuccessful, either party may apply to the FWC to make either:
(a) make an order under section 333P (orders to stop refusing contact or to stop taking certain actions);
(b) otherwise deal with the dispute.
To clarify section 333N (3) (B) regarding the phrase ‘deal with the dispute’, section 333V of the FW Act outlines the powers of the FWC to:
- Deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion, in accordance with section 595 FW Act; and
- If the employee and employer notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may deal with the dispute by arbitration.
The relevance of the new powers exists in situations where adverse action has not been taken by an employer, however, the taking of the right to disconnect is disputed and has not been resolved at a workplace level.
Existing powers
Under section 340 of the Fair Work Act, employers are prohibited from taking adverse action against employees for exercising a workplace right, proposing to exercise a workplace right, or preventing employees from exercising a workplace right.
Adverse action includes situations where an employer, in response to an employee exercising a workplace right, including right to disconnect:
- Dismisses the employee; or
- injures the employee in his or her employment; or
- alters the employee’s position to their detriment; or
- discriminates against the employee compared to other employees
Eligible employees and prospective employees may file general protections claim. Remedies for adverse action claims include compensation for non-economic losses and financial damages resulting from the employer’s conduct. The Federal Court has unlimited authority to award damages in these cases.
The right to disconnect is now recognised as a workplace right, but, under the existing powers, it only becomes relevant only when an employer takes adverse action against an employee for exercising it. Beyond providing protection in such cases, the right to disconnect has no further significance. We anticipate that this right will play a significant role in general protections claims for individuals who are ineligible for unfair dismissal claims, such as those earning above the high-income threshold.
By leveraging these powers, the FWC can issue stop orders, implement alternative dispute resolution mechanisms, provide recommendations or opinions, and, if agreed upon, arbitrate disputes concerning the right to disconnect.