The Right to Disconnect guidelines

Effective Monday, 26 August 2024, Australia has granted millions of workers the legal right to “disconnect,” allowing them to disregard unreasonable out-of-hours calls, emails, and texts from their bosses. People can now decline to monitor, read, or respond to their employers’ attempts to contact them outside of work hours unless that refusal is considered “unreasonable.”

New Legislative Changes

Change have been introduced into the Fair Work Act 2009 (Cth) to give eligible employees the right to ‘disconnect’ from work outside of their working hours. These changes are likely to cause discussion and raise questions in the workplace. Please refer to these guidelines for any questions that arise from employees as these changes are implemented.

The Right to Disconnect

What is the Right to Disconnect?

Employees will be able to reasonably refuse to monitor, read or respond to contact (or attempted contact) from their employer, or from a relevant third party, where they are being contacted in relation to their work, and the contact is occurring outside their working hours.

What is reasonable refusal?

Whether the employee’s refusal is ‘reasonable’ will depend on factors such as:

• The reason for the contact;
• How the contact is made and the level of disruption to the employee;
• The extent of the employee’s compensation for work outside ordinary hours;
• The nature of the employee’s role and responsibility; and
• The employee’s personal circumstances.

Contacting Employees

This right does not stop employers and colleagues from contacting (or attempting to contact) an employee outside of their normal working hours, however that employee can refuse to monitor or respond to that contact, where it is reasonable to do so.

An employee’s refusal may be unreasonable if the contact or attempted contact is required under law.

When does the right start?

This right will come into effect on 26 August 2024 for non-small business holders, and 12 months later for small businesses with less than 15 employees.

This right will apply to employees throughout Australia but not contractors.

How does this affect employers?

Review current communication policies and processes

Employers are encouraged to review their employee’s ordinary working hours, and identify any regular or expected out-of-hours contact and communication with employees. This should be raised with the relevant manager(s) or HR personnel to monitor and assess further.

 Employers must be careful not to directly, or indirectly, prevent an employee from exercising this right.

This right is a new “workplace right”, meaning any adverse action (such as disciplinary action or discrimination, etc) taken against an employee who was properly exercising this right may put the employer at risk of a General Protections Claim under the Fair Work Act.

What if there is a disagreement?

Contact Person

Employers should arrange for a designated person to manage any disagreements regarding what is a ‘reasonable’ disconnect. Attempts should be made to internally resolve any dispute where possible.

Fair Work Commission

If the disagreement cannot be resolved, then either the employee or the employer can apply to the Fair Work Commission to deal with the dispute. The Commission may take steps such as arranging a mediation, making recommendations, and making an order as required.

The Fair Work Commission will write guidelines about how the right works, once the Commission has begun dealing with cases regarding this right. At the moment, exactly how the right will be applied and whether a refusal for contact is ‘reasonable’ will be determined on a case-by-case basis. The Commission has stated it will review the right to disconnect after 12 months.

For further information, ADIA employers can contact Andrew Maher.