Although not the most significant, one of the most prominent changes implemented carried out by the recent Closing Loopholes No.2 amendments is creation of a ‘right to disconnect’, which will commence on 26 August 2024 (and 26 August 2025 for small business). Importantly, this new right allows employees to refuse to monitor, read or respond to contact from their employer or a work-related third party outside of their ordinary work hours.
Employees are also protected from adverse action taken by an employer against an employee because they exercised the right to disconnect.
The right to disconnect is not absolute and an employee’s refusal cannot be unreasonable.
When assessing whether a refusal is reasonable, the following will generally be taken into account:
The reasons for the contact or attempted contact.
How the contact or attempted contact is made, and the level of disruption it causes the employee.
The extent to which the employee is compensated to remain available to perform work during the period in which the contact is made, or for working additional hours outside of the employee’s ordinary hours of work.
The nature of the employee’s role and the employee’s level of responsibility.
The employee’s personal circumstances (including family or caring responsibilities).
It is important to note that this list of factors is non-exhaustive, meaning that the question of ‘reasonableness’ may be open to other determining factors.
The Fair Work Commission will also have the power to deal with disputes regarding the right to disconnect, and may make an order:
to stop the employee unreasonably refusing contact;
to prevent an employer from requiring an employee to remain connected; or
to stop the employer from taking disciplinary action.
With 6 months before these take effect, employers should now be reviewing their working arrangements to manage the transition. Consideration should be given to implementing a ‘right to disconnect policy’ to both provide information and manage expectations around each employee’s rights and obligations. Employers may also want to review their employment contracts and positions descriptions for roles requiring outside of hours contact, to ensure that they properly reflect the requirements of the role. Training should also be considered for people managers to ensure that they are able to properly ensure expectations are communicated and set, and that they don’t inadvertently take adverse action against an employee because they have asserted their right to disconnect.
