Preparing for the Right to Disconnect
The controversial upcoming new workplace right, the “right to disconnect”, will come into effect on 26 August this year under the new section 333M of the Fair Work Act 2009 (Cth) (FW Act).
The right to disconnect was contained in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), the latest tranche of amendments to the FW Act.
In summary, the “right to disconnect” provides employees with a legislative basis on which to “refuse to monitor, read or respond to contact, or attempted contact, from [their] employer [or a third party relating to work] outside of the employee’s working hours”. This means that employees will now have an express right under the FW Act to say no to out-of-hours contact.
However, an employee’s refusal must not be “unreasonable” taking into account the following matters, prescribed in the FW Act:
“(a) the reason for the contact or attempted contact;
(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
(c) the extent to which the employee is compensated [both monetarily and non-monetarily]:
(i) to remain available to perform work during the period in which the contact or attempted contact is made; or
(ii) for working additional hours outside of the employee’s ordinary hours of work;
(d) the nature of the employee’s role and the employee’s level of responsibility;
(e) the employee’s personal circumstances (including family or caring responsibilities).”
What are the implications of the right to disconnect?
Understandably many employees have welcomed the right to disconnect, although it is likely that for those in management and senior leadership positions, the right to disconnect will have minimal impact on the way they work.
For employers, the right to disconnect creates certain obligations and considerations, including:
A requirement to assess whether it is unreasonable for an employee to refuse to monitor, read or respond to contact outside of their ordinary hours: Many employment contracts contain words to the effect that an employee is remunerated for working, and is expected to work, “reasonable additional hours”. However, words along these lines will not displace an employee’s right to disconnect. This means that from 26 August this year, on each occasion an employer wants an employee to monitor, read or respond to contact outside of their ordinary hours, they will need to assess whether it would be unreasonable for the employee to refuse to do so by taking into account the FW Act criteria.
Understanding which hours constitute an employee’s “working hours”: In the age of work from home and flexible working it can be difficult to delineate when an employee’s working hours start and end. Both a strength and a weakness of the right to disconnect is that it does not define “working hours” nor set out how an employee’s working hours are to be determined. Although this ensures that the right to disconnect has broad application, it also creates a risk for disputes to arise between employers and employees as to which hours are an employee’s “working hours” and when their right to disconnect is triggered. Employers will need to give consideration as to what an employee’s “working hours” are in order to properly manage any disputes or refusals about out-of-hours contact, including how this may work in the context of any flexible work policies or processes that the employer has in place.
Awareness of the psychosocial hazards that can arise when employees are required to be constantly contactable: The right to disconnect is reflective of the recent focus in work health and safety law on managing psychosocial risks and hazards in the workplace. Requiring or expecting an employee to be constantly monitoring and reading or responding to contact from their employer or third parties outside of their working hours can negatively impact on employees’ mental health and wellbeing. Employers need to be taking reasonably practicable steps to identify and manage these types of psychosocial risks and hazards.
Modern awards will also be updated to contain a right to disconnect provision. The Fair Work Commission is required to insert a right to disconnect term into all modern awards by 26 August 2024. The Commission is also required to make written guidelines about how the right to disconnect will operate. The Fair Work Commission will be empowered to hear disputes about the right to disconnect and to make orders requiring an employee to monitor, read or respond to contact or attempted contact outside of their ordinary working hours.
What else can employers do to prepare?
With these things in mind, employers may want to turn their minds to how the right to disconnect may impact their workplace and consider:
updating employment contracts so that they clearly state that their remuneration is intended to compensate them to monitor, read or respond to contact, or attempted contact by their employer and third parties outside of their ordinary working hours;
reviewing position description to cover out-of-hours contact and when this may be required as part of the role;
formalising flexible work arrangements and/or confirming in writing with employees their “working hours”;
undertaking a risk assessment around employee workloads, work hours and out-of-hours contact to identify any risks and hazards and take steps to mitigate these;
providing training and/or guidance notes to managers and team leaders so that they understand their obligations with respect to the right to disconnect;
developing systems and processes for managing contact with employees outside of their working hours;
creating and/or updating relevant policies.
The team at Henry William Lawyers can provide advice on which steps may be most appropriate for your business to help prepare for the right to disconnect.
