The right to disconnect: It’s time to prepare a workplace policy

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth)[1] establishes a right to disconnect for the first time in Australian legislation. The novelty of this right has garnered significant media attention, whilst leaving employers uncertain of the precise implications of these changes.

The provisions will take effect for the majority of employers and employees from 26 August 2024,[2] and for small business employers (employers with less than 15 employees) and their employees from 26 August 2025.[3] In advance of the provisions commencing operation, it is pertinent that employers prepare workplace policies addressing the changes.

The right to disconnect: an overview          

The advent of telecommunications and digital technology has transformed the workplace. Employees may now be contacted by their employer at any time and location, displacing employment’s traditional nexus to the physical workplace and working hours. Attempts to regulate when employers can contact their employees has already been seen in international jurisdictions, such as in France and Spain.[4]

In Australia, the right to disconnect is not intended to impose a wide-sweeping prohibition on employees from being contacted outside of working hours.[5] Conversely, it is also not intended to broadly allow employees to ignore contact outside of working hours. Employees will have the right to refuse to monitor, read or respond to contact or attempted contact that is outside of working hours unless the employee’s refusal is unreasonable.[6] This right extends to contact from the employer as well as third parties. However, at first instance, the employer and employee must attempt to resolve the dispute at the workplace level by discussion.[7]

The reasonableness of a refusal to engage with contact outside of working hours will be determined by reference to the following factors:[8]

1. the reason for the contact;
2. how the contact is made and the level of disruption it causes the employee;
3. the extent to which the employee is compensated, either to remain available to perform work during the period in which the contact is made or for working additional hours outside of working hours;
4. the nature of the employee’s role and their level of responsibility; and
5. the employee’s personal circumstances.

The right to disconnect will be embedded within the Fair Work Act 2009 (Cth) so as to be a ‘workplace right’.[9] Consequently, employers will be prevented from taking adverse action against an employee who exercises their right to disconnect.[10] Adverse action includes dismissing an employee or altering the position of the employee as a result of exercising or proposing to exercise a workplace right, giving rise to a general protections claim.

Where parties are unable to resolve a workplace dispute, the Fair Work Commission will, upon application, have the power to make an order, for instance, to prevent employers from taking disciplinary action against employees for exercising their right to disconnect or make an order preventing the employee from unreasonably refusing contact.[11]

Preparing workplace policies

Workplace policies help to ensure consistency and objectivity in decision-making processes within a business, mitigating the risk of non-compliance with employment and safety laws. Good workplace policies are tailored to a given employer, ensuring that procedures address the requirements of the business and its workforce.

As the right to disconnect is yet to commence, there is insufficient case law indicating how employers can best construct their workplace policies. In the interim, employers should prepare policies that provide clarity and procedural fairness.

As such, a competent right to disconnect policy may accomplish the following:

1. define what contact is likely to be considered unreasonable for the business and the various positions within the business;
2. outline the procedures for employees to exercise their right to disconnect;
3. outline the procedures for employees to make a complaint relating to the right to disconnect and how complaints will be reviewed by the employer; and
4. describe how employees will be informed of the policy and how employees may obtain clarification about the policy.

Ultimately, each employer should seek tailored advice to ensure that its policies address the unique needs of its workplace.

Conclusion

Taking adverse action against an employee for exercising their right to disconnect may expose employers to legal risks. Employers can best-position themselves by preparing workplace policies addressing the right to disconnect.

Gadens is well-positioned to assist businesses with tailored advice on workplace policies and all aspects of employment law.

To enquire as to how Gadens may be able to assist, please contact our team.

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Authored by:

Jonathon Hadley, Partner
Liam Elliott, Lawyer

[1] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) sch 1 pt 8.

[2] Ibid s 2.

[3] Ibid s 111.

[4] Lerouge, L. and Trujillo Pons, F., Contribution to the study on the ‘right to disconnect’ from work. Are France and Spain examples for other countries and EU law? (2022) 13(3) European Labour Law Journal 450, 450. Available at: <https://doi.org/10.1177/20319525221105102>.

[5] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) s 97.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Fair Work Act 2009 (Cth) pt 3-1.

[10] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) s 97.

[11] Ibid.