A new Bill, Closing Loopholes No 2, has passed Parliament on 12 February 2024, introducing new reforms allowing employees to disconnect outside work hours. The legislation has come about from a push by the Greens party to strengthen employees' rights regarding their time away from work.

What is an employee's 'right to disconnect'?

Employees will now have the right to refuse to monitor, read or respond to contact, or attempted contact, from an employer outside their required working hours. Additionally this reform extends employees' rights to refuse contact from third parties regarding work related matters. However it won't apply when the refusal to communicate is a requirement under Commonwealth, State or Territory laws or it is deemed unreasonable. Considerations that will be taken into account when determining unreasonable communication include:

  • The reason for the contact or attempted contact;
  • How the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
  • The extent to which the employee is compensated (including non-monetary compensation) to remain available to perform work or be contacted, or for working additional hours, outside of ordinary working hours;
  • The nature of the employee's role and the employee's level of responsibility; and
  • The employee's personal circumstances (including family or caring responsibilities).

Which employees will be affected and how can workplaces prepare for this new ruling?

For employees in large businesses the right to disconnect will take effect 6 months after Royal Assent, although it is unclear when that will occur. Employees working in small businesses will see this new ruling come into effect 18 months after Royal Assent. A small business is defined under s23(1) of the FWA as a business which employs fewer than 15 employees at a time.

In preparation for the changes employers should communicate to their work force what is the right to disconnect and what that means in relation to their role. Additionally it will be important for workplaces to ensure all employees understand what is deemed reasonable communication and what is not. Businesses can do this by incorporating a list of examples and criteria's within their workplace policies and guidelines to help their workforce identify what is seen as reasonable and unreasonable communication. However given that employee rights to disconnect depends on the particular role of the employee and their remuneration then personalised guidelines may need to be developed for individual employees or groups of employees performing similar roles and with comparable levels of remuneration. Businesses in the services sector (eg professional service firms) may also need to monitor the extent to which third parties (eg clients) are contacting employees of the firm after hours and seek regular feedback from such employees as to whether such communication is excessive.

Dispute resolution and potential penalties?

If a dispute arises regarding an employee refusing to engage with their employer's correspondence, a resolution must be sought within the workplace first. Once all resolutions options have been exhausted either party can apply to the Fair Work Commission to have their case heard by the tribunal where either party can apply for a 'Stop Order'. For employees a 'Stop Order' will prevent their employer from sending unreasonable work correspondence outside work hours. Conversely, employers can apply for a 'Stop Order' that prevents their employee from unreasonably refusing to engage in work communications beyond work hours. If 'Stop Orders' are breached civil penalties of up to $18,000 could be issued under the FW Act.

General Protection Claims:

In addition the right for employees to disconnect outside their required working hours will be incorporated as a workplace right under the general protection regime within the FWA. Therefore employees may be entitled to bring a general protection claim against their employer on the grounds of adverse action. Section 340 of the FWA prohibits an employer from taking adverse action against an employee if they are exercising their workplace rights. Therefore an employee will be entitled to bring a general protections claim against their employer if they feel as though their employment has been affected (such as being dismissed or treated unfairly) because they exercised their right to disconnect. With general protection claims there is a reverse onus on the employer who holds the burden to show that they did not terminate or impose detriment on the employee because they exercised their right to disconnect. It is important to note damages in general protections claim are uncapped, incentivising individuals to bring forward a claim.

Rationale for the reform:

The reforms were implemented due to technological enhancements altering the way employers and employees communicate. In earlier times, all work related communication was restricted to work desktops, now all communication channels such as work email and phone lines are connected to our personal devices, allowing work correspondence to flow at all times. Evidentially workplace cultures have evolved to expect work related conversations to exist beyond paid hours regardless of its importance. The 'Right to Disconnect' aims to restructure and strengthen work life balance, improve employees mental health and reduce work related stress by enabling employees to refuse work correspondence when reasonable without suffering consequences.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.