The new right to disconnect – how to comply

Employers with 15 or more employees must comply with a new right to disconnect that commences on 26 August 2024.

Get started with Lixo AI to ask questions about the right to disconnect for free, 24/7.

What is the right to disconnect?

National system employees will have a positive right to refuse contact or attempted contact from their employer and third parties (including clients, suppliers or customers) outside of their working hours (including to monitor, read or respond to contact), unless their refusal would be unreasonable.

Involvement of the Fair Work Commission

Employers and employees can also apply to the Fair Work Commission to resolve a dispute in relation to the right to disconnect if discussions at the workplace level do not first resolve the dispute.

The Fair Work Commission will not have the power to order compensation, but will have the power to make orders that:

1. unreasonable contact stop,
2. disciplinary action from an employee’s reasonable refusal stop, or
3. employees stop unreasonably refusing to respond to certain contact.

If an employer or employee breaches an order they will breach a civil remedy provision and may be ordered to pay a pecuniary penalty order.

The maximum penalty depends on who breaches the order and the applicable financial year.

The employer or individual may be required to pay all or part of a penalty to the Commonwealth, an organisation (ie a union) or a particular person (ie the person who suffered the breach). 

General protections risk

A significant impact for employers is that the right to disconnect will also be a workplace right under the general protections regime.

The effect will be that an employer cannot take adverse action (including disciplinary action) against an employee for having, exercising, proposing to exercise, or to prevent the exercise of their right to disconnect.  

Our experience suggests that the general protections aspect of the right to disconnect will be the most problematic for employers to navigate, particularly in high performance, client-facing and/or global workplaces in relation to employees dismissed or performance managed who, among other things, raised concerns with contact outside of working hours. 

What is unreasonable refusal?

To assess if an employee’s refusal to contact outside of working hours is unreasonable, the following factors set out in a new section 333M(3) of the Fair Work Act will be relevant:

1. the reason for the contact or attempted contact,
2. how the contact or attempted contract is made,
3. the level of disruption caused to the employee,
4. the extent to which the employee is compensated for remaining available when the contact is made (or attempted) or for working additional hours,
5. the nature of the employee’s role and level of responsibility, and
6. the employee’s personal circumstances, including family and caring responsibilities.

Refusal will be unreasonable if required by law, or for matters that involve Australia’s defense, national security or an operation of the Australian Federal Police. 

What should employers do now to prepare?

The impact of the right to disconnect will be significant for employers, particularly given the cumulative impact of recent employment law reforms – the vast majority of which have made it more difficult to employ people. 

That said, if employers take a structured approach to understanding and complying with the incoming right to disconnect, the upside may be higher employee engagement with limited additional legal risk.  

To prepare for the right to disconnect, employers should consider the following approach:

1. Identify employees who are contacted, or expected to be contactable, outside working hours. 
2. Understand why those employees are contacted outside their working hours.
3. Consult with those employees and their managers on strategies to reduce unnecessary contact outside working hours and what, in their view, is either reasonable or unreasonable contact in the context of:
   1. their seniority, positions, duties and deliverables,
   2. the employer’s industry, and
   3. the employer’s duty to minimise risks to health and safety to the extent reasonably practicable.
4. To the extent appropriate, amend existing employment contracts, position descriptions and template employment contracts to redefine working hours, provide that remuneration includes compensation for contact outside working hours (or include a separate remuneration component for such contact that may involve non-monetary compensation), and/or provide that the employee’s position inherently requires contact outside working hours.  
5. Implement a Right to Disconnect Policy that builds on the legislative requirements and employee consultation to document:
   1. the expectations of managers and employees,
   2. what constitutes reasonable contact outside working hours,
   3. steps to document contact outside working hours (ie making all contact on email),
   4. measures to avoid unreasonable contact and respecting employee boundaries (ie scheduling email delivery, explaining why contact is reasonable, or inserting subject line or email footer caveats that a response during working hours only is required),
   5. guidelines for employees who want to work outside of working hours and for managers on how to make out of hours contact to employees,
   6. the consequences of unreasonably refusing contact, including potential disciplinary action, and 
   7. processes for resolving concerns at the workplace level with a view to minimising applications to the Fair Work Commission.
6. Train or educate managers, employees and (if appropriate) third parties such as suppliers, customers, board members, contractors, and offshore entities.  Training should be tailored for each separate audience.  Among other things, manager training should involve education on the benefits of disconnecting from work and the risk of a general protection claim where performance management or disciplinary action is in part based on a refusal to work outside working hours. 

You may also consider subscribing to Lawlux Learnings. 

The Fair Work Commission is required to issue guidelines on the right to disconnect, which we anticipate soon. We will provide a Lawlux Learning as soon as those guidelines are issued.  

Would you like assistance?

Lawlux has considerable experience working with employers to ensure compliance with the Fair Work Act.

If you would like to discuss your situation or require a best practice Right to Disconnect Policy, please contact us or get started with Lixo AI.