Penalties for Breaching the Right to Disconnect

As an employer, it is important that you are aware of changing laws regarding your employees' rights. Commencing 26 August 2024, employees may rely upon the right to disconnect from work outside their working hours. This article will address the penalties you may face for breaching an employee's right to disconnect to help you understand your obligations and the consequences of breaches.

What is the Right to Disconnect?

The right to disconnect entitles employees to refuse to monitor, read, or respond to contact from an employer or any work-related third party outside of their work hours. However, in some circumstances, an employee's refusal would be deemed unreasonable, and contact is permissible.

The right to disconnect commenced on 26 August 2024 for employees of a non-small business and will commence on 26 August 2025 for small business employees.

When considering if an employee's refusal is unreasonable, you must consider:

• the reason for the contact;
• how they are contacted and how disruptive it is to them;
• whether, and what amount, the employee is compensated for:
  • being available to perform work during the period they are in contact; or
  • working additional hours outside their ordinary hours of work;
• the employee's role in the business and level of responsibility; and
• the employee's circumstances, including family or caring responsibilities.

Ultimately, employers should assess the employee's circumstances when determining whether contact is reasonable. Relevant factors may include the:

• employee's job role and level of seniority;
• urgency of the contact; and
• reason for contact, such as arranging work locations or hours for the next day.

What Happens if I Breach an Employee's Right to Disconnect?

Your breach of the right to disconnect will not directly result in financial penalties. If a dispute arises, you and your employees must first have a workplace-level discussion. If the issue remains unresolved, the employee may apply to the Fair Work Commission (FWC) to resolve it. The FWC will then make a finding to determine the reasonability of the employee's refusal.

The right to disconnect is a workplace right. This means that if an employee exercises this right, they are protected from:

• adverse action;
• coercion; and
• undue influence or pressure.

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What Orders Can the FWC Make?

The new changes to the law grant the FWC broad, discretionary power to make any order it considers appropriate. The FWC may hold a conference to resolve the dispute or hold an arbitration if both you and the employee agree.

Overall, the FWC may make orders preventing:

• the employee from continuing to refuse contact unreasonably;
• you from taking disciplinary action; or
• you from continuing to require the employee to monitor, read or respond to the contact or attempted contact.

The FWC may also issue a stop order to stop an employee from unreasonably refusing contact or to stop you from requiring them to monitor contact. It is important to note that the above does not give rise to financial penalties. However, contravention of the FWC's decision will result in financial penalties.

What are the Penalties for Contravention of an Order?

The financial penalties for contravening an order vary depending on the circumstances and whether the contravention was made by an individual or a body corporate.

A contravention may result in a financial penalty of up to $93,900 per contravention for a body corporate and upwards of $18,780 per contravention for individuals.

Key Takeaways

The right to disconnect is now operational for some businesses, and employers must ensure that contact with employees outside of work hours is reasonable and compliant with the right to disconnect laws. If you do not comply with this right, you will not automatically be liable to financial penalties but may be subject to new obligations. An employee will be required to apply to the FWC, and a decision will be made from there. If you breach the FWC's order, you will then be liable for financial penalties.

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.