As a late addition to the second tranche of Closing Loopholes changes to the Fair Work Act 2009 (Cth), this amendment certainly got a lot of attention, particularly given a large portion of businesses are still grappling with working arrangements in a post-pandemic environment. 

Insight

Soon there will be a positive right for employees to refuse to monitor, read or respond to contact (including attempted contact) from their employer or third parties where that contact is made outside of the employee’s working hours unless the refusal is unreasonable.

Where there is a disagreement, the Fair Work Commission can deal with a dispute after the parties have attempted to resolve the issues at the workplace, as follows:

  • employees can apply for an order to stop unreasonable contact or disciplinary action resulting from a reasonable refusal; or
  • employers can apply for an order where the employee’s refusal is unreasonable.

In terms of whether the refusal is unreasonable, there is some guidance as to what may be considered in the event of a dispute, noting the Fair Work Commission is not limited to only considering these matters:

  • the reason for the contact;
  • how the contact is made and the level of disruption the contact causes for the employee;
  • the extent to which the employee is compensated to remain available to perform work during the period in which the contact is made or is compensated for working additional hours outside the employee’s ordinary hours of work;
  • the nature of the employee’s role and their level of responsibility; and
  • the employee’s personal circumstances, including family or caring responsibilities.  

As a result of these changes, the right to disconnect will also be a protected attribute for the purposes of the general protections provisions and the new right will be reflected in modern awards in due course.

This new right will apply to all employees, including those who are not covered by industrial instruments.

These changes will take effect on 26 August 2024 for most businesses, with the changes applying to small businesses from 26 August 2025.

Why this matters

These changes may need to be carefully considered by your business, particularly where your operations extend across multiple time zones or operate on a 24/7 basis.

Employers should assess where out of hours work may be reasonable and consider whether it is necessary to update your employment contracts, policies and position descriptions to specify when out of hours contact may be required.

How we can help

Decipher Workplace Law can guide you through these changes, including reviews of existing employment contracts or policy frameworks. For more information, visit our website: www.decipherlaw.com.au

This is general advice only and does not constitute legal advice. Please seek legal advice regarding your specific circumstances.