Under the new ‘right to disconnect’ rights, an employee may refuse to monitor, read or respond to contact, or attempted contact, outside of the employee’s working hours from their employer, or a third party if the contact relates to their work, unless refusal is unreasonable.
In determining whether a refusal is unreasonable, several factors must be considered including, among others, the following:
- 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
- whether the employee is compensated to remain available to perform work during the period in which the contact or attempted contact is made, or for working additional hours outside of the employee’s ordinary hours of work
- the nature of the employee’s role and the employee’s level of responsibility
- the employee’s personal circumstances (including family or caring responsibilities)
The right to disconnect will be a workplace right, and in accordance with general protections provisions, an employer cannot take adverse action against an employee for exercising their workplace right.
If there is a dispute regarding the right to disconnect which cannot be resolved by discussions at the workplace level, either party may apply to the Fair Work Commission (FWC) to deal with the dispute. If the FWC finds the employer has breached the provision, the FWC may make an order to prevent the employer from taking adverse action, or from requiring the employee to monitor, read or respond to contact outside of work hours. If those orders are breached by the employer, civil penalties may apply.
All modern awards will also include a term regarding the ‘right to disconnect’ by 26 August 2024. At this stage, we are waiting further confirmation from FWC on what the new right to disconnect terms and guidelines will look like and how it will operate across different industries and occupations in practice. We will provide members with more information about these terms when it is inserted in the modern awards.
The right to disconnect will commence on:
- 26 August 2024 for non-small business employers; and
- 26 August 2025 for small business employers.
