Clocking off: What does the ‘right to disconnect’ actually mean for employers?

From Monday 26 August 2024, the Fair Work Act will be amended to provide most employees a ‘right to disconnect’.  You can read about some of the other recent changes in our earlier article.

Right to disconnect

Under the right to disconnect, an employee may ‘refuse to monitor, read or respond to contact, or attempted contact’ from an employer or a third party (e.g. customer, contractor or client) outside of the employee’s working hours unless the refusal is unreasonable.

There has been some confusion about what this change will require of employers.  The change will not impose any direct obligation on employers.  However, it may impact what they can expect of their employees.

The right to disconnect will only apply outside of an employee’s working hours.  This may seem obvious, but it will not provide an excuse to employees refusing to work during the hours in which they agreed or are rostered to work.

When will a refusal be unreasonable?

The legislation lists some non-exhaustive matters to be considered when determining whether an employee’s refusal is unreasonable.  These include the reason for the contact or attempted contact, how it is made and the potential disruption, whether and how the employee is compensated for remaining available, the employee’s role and level of responsibility, and the employee’s personal circumstances including family or caring responsibilities.

Importantly, a high salary alone may not alone be enough to require an employee to monitor, or respond, to out of hours contact.  More is likely required.  

Workplace right 

The right to disconnect will be a ‘workplace right’ under the Fair Work Act.  This means that an employer must not take adverse action against an employee because (or for reasons that include that) they have exercised the right, provided it was not unreasonable for the employee to do so. 

For this reason, employers should exercise caution before subjecting an employee to discipline, including dismissal, for any reason related to a failure to respond, or work, out of hours.  The right to disconnect, or complaints about it, are likely to be added to the arguments raised by employees who suffer detriment in their employment going forward.

Disputes about the employee right to disconnect

If there is a dispute about an employee’s refusal to monitor, read or respond to contact or attempted contact the employer and employee must first attempt to resolve the dispute through discussion.  If that does not resolve the dispute, either party may apply to the Fair Work Commission, who now has power to make various orders regarding such disputes.

Variation of modern awards 

The Fair Work Commission will also be inserting a right to disconnect term into all modern awards.

The draft award term mostly reproduced the right to disconnect as provided in the Fair Work Act, but it also clarified how the right may apply in standby/on-call situations, and where there are emergency roster changes.

The draft award term also provided that employers ‘must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act’.  The meaning of this clause is yet to be tested, but it potentially increases the burden on employers.

What do these changes mean for employers?

Whether these amendments have a significant impact on your organisation will depend on factors such as your employment contracts, enterprise agreement (if any), industry, rostering patterns, and work demands.  We encourage close consideration of those factors now, which along with clear communication to staff, may save many headaches in the future.

Employers should review their employment contracts, policies and procedures, and job design, in preparation for the changes. This likely aligns with employers obligations to ensure they are meeting their obligations to workers surrounding psychosocial safety laws. If employees are currently expected to monitor emails or calls out of hours, and these roles are not especially senior or the contact particularly urgent, you should consider whether this is necessary.  If it is, you may need to consider why, and ensure those employees are adequately compensated for that obligation, along with ensuring policies and procedures are clear enough in setting that obligation.  You may also wish to provide specialised training to staff, particularly those in managerial roles, regarding the right to disconnect and the limitations it may impose on staff expectations going forward.