Navigating the new 'right to disconnect': What employers need to know

In Brief: Earlier this month, the Federal Government passed the second tranche of amendments to the Fair Work Act 2009 (Cth)(Act) including the well publicised "right to disconnect" contained in the new section 333M of the Act.

To help employers prepare for this significant change, we briefly outline what to expect.

What is the right to disconnect?

The right to disconnect will apply to both employer and third party communications and will provide employees with another protected right under the general protections regime in the Act.

Under the new right to disconnect, an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.

In addition, the right will also allow an employee to refuse to respond to communication from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.

When does an unreasonable refusal by an employee to "connect" apply?

An employee may be deemed to have unreasonably refused to connect where they are required by State, Territory or Commonwealth law to respond or when considering the following non-exhaustive factors:

1. The reason for the contact or attempted contact with the employee;

2. How the contact or attempted contact with the employee is made and the level of disruption the contact or attempted contact causes the employee;

3. The extent to which the employee is compensated (including non-monetary compensation):

a. To remain available to perform work during the period in which the contact or attempted contact is made; or

b. For working additional hours outside of the employee’s ordinary hours of work;

4. The nature of the employee’s role and the employee’s level of responsibility;

5. The employee’s personal circumstances (including family or caring responsibilities).

This right will be superseded by any analogous provisions in any enterprise bargaining agreements.

What happens if there is a dispute regarding the request?

An employee or employer can apply to the Fair Work Commission to deal with a dispute regarding the right to disconnect.

The Commission has powers to make orders to either:

1. Prevent the employee from unreasonably refusing to respond if it believes there is a risk the employee will continue to do so; or

2. Prevent an employer from taking disciplinary action or requiring an employee to remain connected in circumstances where it is reasonable for the employee to refuse.

What does this mean for employers?

As noted above, the right to disconnect will be a protected right under the Act. By extension and considering the factors that go to determining an unreasonable refusal, an employer may also inadvertently engage in discrimination in the event that, for example if the employee has family or caring responsibilities.

Employers should be ensuring that any right to disconnect in an industrial instrument does not extend beyond the provisions of the Act.  

Employers should revisit their position descriptions to determine whether any employees are remunerated with an expectation of out of hours communication and ensure this is reflected in their positions descriptions.

Employers should implement a right to disconnect policy to ensure all employees are aware of their rights and obligations.

When will it start?

Small businesses have a 12 month reprieve before it affects their operations and all other employers have 6 months to prepare for the new right to disconnect once the new right has passed into law.

Contact our Employment and Safety team for assistance in navigating these new changes.