Last year, the Senate Select Committee on Work and Care drew attention to "availability creep" where Australian employees are increasingly expected to complete work outside of work hours leading to significant unpaid overtime.
To combat this, the Fair Work Act 2009 (Cth) has been amended from 26 August 2024 to include a new employee right to disconnect from work as part of changes from the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.
Initially, the change will only apply to employees from employers with more than 15 employees. For small business employers, these changes will take effect on 26 August 2025.
What will the right to disconnect look like?
In practical terms, the new provisions protect employees from unreasonable contact from their employers outside of their ordinary working hours. This means an employee can refuse to monitor, read or respond to contact from their employer or a third party (such as a supplier or client) in relation to work.
Under the changes, employees who refuse to monitor or respond to out-of-hours calls and emails from their employer will have legal protections against adverse action for exercising their workplace rights, including protection against disciplinary action or dismissal.
It will be unlawful for an employer to take adverse action against an employee for holding, exercising or proposing to exercise their right to disconnect.
When is refusal unreasonable?
Whether an employee's refusal is reasonable will depend on the circumstances of each case. Factors that will be considered when determining whether an employee's refusal is unreasonable include:
- The reason for the contact (or attempted contact)
- How the contact is made and how disruptive it is to the employee
- Whether the employee is compensated for being available to be contacted to perform work within a specific period or work additional hours
- The nature of the employee's role and their level of responsibility within the business
- The employee's personal circumstances, including whether they have family or carer's responsibilities.
When a dispute arises
Employees persistently contacted by their employer or manager after hours can now apply to the Fair Work Commission for a 'stop order', similar to the existing stop bullying and stop sexual harassment jurisdictions. These changes are in addition to existing protections employees have against working unreasonable hours.
It is then up to the Commission to consider whether the circumstances in which the contact occurred are unreasonable, how often the employee was contacted, the nature of their role or responsibilities and the employee's personal circumstances before making an order.
The Commission is able to make a stop order and/or deal with the dispute in other ways such as holding a conference to encourage parties to find a resolution.
Our team of lawyers are across the legislative changes and ready to advise employees on their right to disconnect. If you believe your refusal to respond to unreasonable contact from your employer outside your ordinary working hours has resulted in adverse action against you, contact us today.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.