From 26 August 2024, employees working with an employer with 15 or more employees will have a new Right to Disconnect.
An employer who takes Adverse Action against an employee for a protected workplace right (including an Employee’s Right to Disconnect) will be liable to a civil penalty for breach of the Fair Work Act.
What is an Employee’s Right to Disconnect?
The Right to Disconnect extends to an employee’s right of refusal to monitor, read or respond to contact or attempted contact from their employer outside of their working hours unless their refusal is unreasonable.[1]
The right is likely to extend to refuse to monitor and read any communication such as emails, text messages or other electronic communications from their employer to an employee outside of working hours.
The employee can refuse to monitor, read or respond to a message from their employer or a third party on the employer’s behalf only if their refusal is not unreasonable taking into account: –
- The reason for the employer’s contact or attempted contact;
- How the contact/attempted contact was made and level of disruption caused to the employee;
- Whether the employee is compensated to remain available to perform work for the contact/or attempted contact or for working additional hours outside of their ordinary hours of work;
- The nature of their role and level of responsibility; and
- Their personal circumstances (including family and caring responsibilities).[2]
There has been much publicity and comment that the new laws are a “sweeping change to industrial laws” or will bring about some resolution in work practices. However, there are already existing laws in place which to some extent, aim to address “unreasonable contact” by an employer entitling an employee to take action in some circumstances.
For example: –
- The employer’s obligation under Occupational Health and Safety laws to ensure that risks to employees’ health and safety are eliminated by not unnecessarily or improperly contacting an employee about work related matters outside of work;
- An employer’s obligation to not engage in unreasonable managerial action in a repeated manner creating a risk to employee’s health and safety and amounting to bullying; [3]
- An employee’s right to only be expected to follow lawful and reasonable directions from their employer and unfair dismissal laws should an employer unnecessarily take action based on an employee not following unreasonable directions.
An Employment Contract for a Senior level or Executive employee may regulate instances of appropriate out of office contact. Most often, however, Employment Contracts will not cover such instances and there might be a general expectation by Employers that employees answer their requests on work matters, or at least monitor their emails.
The amendments to the Fair Work Act regarding the Right to Disconnect now address any general expectations that employees can and should be contacted out of work hours and makes it necessary for the employer and employee to clearly commit to their arrangements in writing at the outset of their employment so that employees and employers know where they stand about “reasonable directions”.
Disputes about what is unreasonable contact
Disputes regarding what is unreasonable contact must be resolved at the workplace level.[4]
If discussions fail however, a party to a dispute may apply to the Fair Work Commission for an Order that the employee does not refuse contact from their employer or otherwise deals with the dispute.
FWC’s powers to order to stop refusing contact may extend to the following: –
- Preventing the employee from continuing to unreasonably refuse to monitor, read or respond to the contact;
- Preventing an employer from taking disciplinary or other action against the employee because of the employer’s belief that the employee’s refusal is unreasonable;
- Preventing the employer from continuing to require the employee to monitor, read or respond.[5]
Generally, the FWC must start to deal with the application within fourteen (14) days.[6]
Any employer breaching an order of FWC is liable to a penalty for their breach.
Important take outs
While the laws before the amendments were passed provided for some rights for employees to disconnect when their employer unreasonably contacted them, there was less certainty for employees to resist such contact without consequence. The Fair Work Act amendments now provide a clear path for an employee to challenge unreasonable contact by the employer. It might also be said that the employers also have a clear path to insist on contact should an employee “unreasonably” refuse contact.
The inclusion of the additional workplace right means that even a proposed genuine refusal by an employee to be contacted may constitute a protected workplace right (even if the employer is ultimately found to have properly contacted the employee). Proposed workplace rights, whilst not exercised but intended to be exercised by an employee, entitle an employee to protection under the Fair Work Act.[7] An employer should therefore be mindful about the occurrences and risks for them in taking any action against an employer for “refusing contract.”
Should you require any advice in relation to your existing Employment Contract, Workplace Policies or employment arrangements, please contact our friendly staff and we will be able to consult you in a prompt manner.
[1] New s.333M(1) Fair Work Act 2009 (Cth)
[2] s.333M (3)
[3] See s.789FC and s.789FD (1) & (2) of the Fair Work Act
[4] s.333N(2)
[5] s.333P(2)
[6] S.333P(3)
[7] s.340(1)(iii)