Back on Monday! Employees’ New Right to Disconnect

What do the new laws mean in practice?

Out of hours work is common in many industries and workplaces, and there are a range of existing laws that already govern out of hours work. For example:

1. The National Employment Standards already provide that employees have a right to refuse to work unreasonable additional hours, beyond 38 hours per week for full-time employees, or the employee’s ordinary hours of work, for part-time employees.
   
   
2. Many Awards and Enterprise Agreements include provisions for matters such as overtime penalty rates, and minimum periods of engagement for casual and part-time employees (meaning that employees cannot be asked to work ad hoc periods for less than two or three hours, for example, unless they are paid wages for working at least those hours).
   
   
3. Awards and Enterprise Agreements in industries where on-call work is common often include standby allowances, provisions addressing roster changes on short notice, and on-call or call back provisions.

However, the Government clearly believes that there are some gaps in the existing protections for employees, including concerns that employees could be unreasonably expected to take phone calls and monitor emails around the clock.

The Fair Work Act's New Right to Disconnect

The new laws means that, from 26 August 2024, an employee may refuse to monitor, read or respond to contact, or attempted contact, by an employer or from a third party (such as a customer) outside work hours, unless it is unreasonable for them to refuse such contact.

This means that employees can refuse to take work-related phone calls, or check or respond to work related emails, outside working hours.

The exception is if it is unreasonable for the employee to refuse the contact, taking into such matters as:

1. The reason for the contact by the employer or third party;

2. How the contact is made and how disruptive it is;

3. The extent to which the employee is compensated:

• a. to remain available to perform work; and
• b. for working additional hours outside the employee’s ordinary hours of work;

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

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

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Basically, the question of what is unreasonable for an employer to expect will be a balancing exercise.

One would hope that common sense would prevail. Employers should try to avoid unnecessary out of work contact, and respect employees’ out of work hours, and employees should be willing to take calls from work out of hours on the (hopefully) relatively rare occasion that it is necessary.

Where employees, such as casuals, regularly work shifts to replace other employees, businesses would be well served to establish a system where employees can indicate their availability in advance.

However, if common sense does not solve the issues (and realistically, in some industries and workplaces that operate 24-7, and with some senior and professional roles, this is going to be more difficult), then employers need to be mindful that the ‘right to disconnect’ is a workplace right, and taking adverse action, including disciplinary action, against an employee because they refused contact out of working hours would be unlawful unless the employee’s refusal was unreasonable.

Employers who are not careful will risk general protections claims.

Therefore, employers need to be very careful before taking action against an employee because they refused to take a phone call, or monitor or reply to emails, out of working hours.

If an employer is concerned about an employee refusing contact unreasonably, and the matter cannot be resolved informally in the workplace, the employer can utilise the dispute resolution procedure through the Fair Work Commission (discussed below).

The new Award Provisions

In addition to the new statutory right in the Fair Work Act, Awards will include a new right to disconnect term.

The term is currently in draft form.

In its draft form, the Award term goes a step further than the Act, and provides that ‘an employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act’.

Whereas the Act gives an employee a positive right to refuse contact, the draft Award term will establish an obligation on employers to make sure that they are not, directly or indirectly, place employees in situations where they cannot exercise their right to disconnect from work.

This means that employees not only have the right to refuse contact (unless the refusal is unreasonable), but that an employer could be in breach of the Fair Work Act if they place employees to whom an Award applies in a situation where they directly or indirectly, place an employee in a situation where they cannot exercise their right to disconnect from work.

The onus effectively shifts from being on the employee to refuse contact, to the employer to ensure that employees are not placed in the position that they need to refuse contact. This means that employers will need to take additional care to ensure that Award employees are not placed in situations where they feel that they have no choice but to engage in out of hours work activities, even if it would be reasonable from a legal perspective for them to decline to do so.

The draft term contains exceptions that will be included in Awards that have existing stand-by provisions, emergency roster changes and recall provisions, to allow the operation of those terms.

The new Award terms are proposed to commence from 26 August 2024 for businesses other than small businesses (businesses with less than 15permanent and regular casual employees). For small business, the new Award term will commence on 26 August 2025.

Enterprise Agreements

We can also expect right to disconnect terms to appear with increased frequency in Enterprise Agreements, given that Enterprise Agreements need to make employees better off overall compared to the relevant Award.

Dispute Resolution Procedure

The Fair Work Act includes a new dispute resolution procedure that employees and employers can utilise to resolve disputes arising from the right to disconnect.

In the first instance, the employer and employee are to engage in workplace level discussions. If workplace level discussions do not resolve the dispute, then either party may apply to the Fair Work Commission to deal with the dispute. We expect that the Commission will generally attempt to conciliate the dispute in the first instance, but if the Commission cannot bring the parties to an agreement, the Commission will have the power to make orders that:

1. An employer cease requiring an employee to respond to contact, in circumstances where the Commission finds that the employer’s requirements have been unreasonable and the Commission expects that the employer will continue to unreasonably require contact; or
2. An employee cease refusing to respond to contact, in circumstances where the Commission finds that the employee’s refusals to respond to contact have been unreasonable and the Commission expects that the employee will continue to unreasonably refuse to respond to contact.

A breach of an order of the Commission will expose the contravening party to civil penalties.

We will be watching closely the early cases that the Commission decides, as they will provide a good indication of how the new right to disconnect is to be applied in practice.

Conclusion

Given the new right to disconnect, employers would be well served to review their existing policies and procedures in relation to out of work contact, and to ensure that managers have appropriate training in this area.

How Sharrock Pittman Legal can help?

As employers, and employees, too, test the water with this element of the workplace law, it is likely that confusion and disagreements may arise. As an Accredited Specialist in Workplace Relations, Samuel Ellemor is ready to assist employers navigate this significant change.

For advice, please do not hesitate to contact us on 1300 205 506 or email sp@sharrockpitman.com.au.

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‍The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.‍