On 12 February 2024, the Australian Federal Parliament passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, which introduces, among other changes, a right for all employees to disconnect outside of working hours. The right to disconnect will enter into effect 6 months after the legislation receives royal assent (expected soon) for businesses with at least 15 employees and 18 months after royal assent for businesses with fewer than 15 employees.
UPDATE: Employers with at least 15 employees will have to comply with the right to disconnect outside of working hours, from 26 August 2024. The new right to disconnect will not apply to employers with less than 15 employees, until 26 August 2025.
Background
With the rise of remote working and advances in digital technology, the lines between workers’ professional and private lives have been steadily blurring. This legislation seeks to address that issue by setting clear obligations and boundaries for employers and employees.
Key details
Under the right to disconnect legislation, employees cannot be penalized when they reasonably refuse to monitor, read, or respond to a work-related contact or attempted contact from an employer or a third party outside of work hours.
Determining whether the employee is reasonably or unreasonably refusing contact outside of work is ascertained by weighing the following factors:
The reason for the contact or attempted contact
How the contact or attempted contact is made and the level of disruption this causes the employee
The role and responsibilities of the employee
The employee’s personal circumstances (including family or caring responsibilities)
Any compensation (including monetary and non-monetary) the employee receives for performing work or remaining available outside of working hours
Employers are prohibited from taking adverse actions against employees who exercise their right to disconnect. It should be noted that refusing to connect will automatically be considered unreasonable when the contact or attempted contact is required by law.
When an enterprise collective agreement provides a right to disconnect with more favorable terms than the statutory provisions, the terms of the enterprise agreement prevail and continue to apply to covered employees.
Disputes
In the event of a dispute over the reasonableness of any refusal to connect, employees and employers must first attempt to settle the issue at the workplace level. If the parties fail to resolve their dispute, the employee or the employer may apply to the Fair Work Commission (FWC) for a decision. Based on their decision, the FWC can order employees to respond, employers to refrain from contact, or require other actions necessary to protect the reasonableness of right to disconnect provisions.
Non-compliance with FWC orders may result in monetary penalties that will vary depending on the seriousness of the offence. Deliberate non-compliance will be considered a criminal offence that could lead to imprisonment.
Next Steps
Employers should monitor the implementation timeline of the changes which will vary according to their headcount. In the meantime, employers should review their employment contracts, enterprise level collective agreements (if any), and internal policies and practices. Employers should start planning appropriate internal communications and trainings for staff and managers to ensure compliance. The right to disconnect will be included in Modern Awards and employers should consult their award as it is updated.
Clear written guidelines on the functional operation of the right to disconnect will be created and distributed by the Fair Work Commission once the legislation receives royal assent.
RESOURCES:
parlinfo.aph.gov.au.docx (live.com) (opens a new window)
Right to disconnect – Fair Work Ombudsman (opens a new window)