19/02/2024
Facts – the new Right to Disconnect
In a bid to address the growing concerns of work-life balance and the intrusion of work into personal time, the right to disconnect amendment to the Fair Work Act 2009 (Cth) (the Act) was passed by the House of Representatives on 12 February 2024.
Who does it apply to?
The right to disconnect is a new right protected under the general protections regime under the Act.
When does it start?
Small businesses have 12 months before the right to disconnect applies to their operations. All other businesses have 6 months to prepare. The exact date will depend on when the Bill receives Royal Assent.
Right to refuse
This provision, found in new section 333M, grants employees the right to refuse monitoring, reading, or responding to work-related communications outside of their designated working hours, unless refusal is unreasonable. The right to disconnect applies to both employer and third-party communications.
When refusal will be unreasonable
Section 333M(3) sets out a non-exclusive list of factors which must be taken into consideration when assessing if a refusal is unreasonable. These factors include:
- the reason for the contact or attempted contact;
- how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes;
- the extent to which the employee is compensated;
- the nature of the employee’s role and level of responsibility; and
- the employee’s personal circumstances including family or caring responsibilities.
Refusal will be unreasonable if the contact or required contact is required under law.
A practical example of where refusal would be unreasonable is where a manager is contacting a casual employee to see if they can pick up a shift outside of their working hours. Similarly, failing to respond would be unreasonable if the employer was remunerating the employee for work outside of ordinary working hours or for remaining available to work during the time the attempted contact is made.
Responding to disputes
The amendment introduces a structured approach to handling disputes arising from the exercise of the right to disconnect. Parties are required to first attempt to resolve disputes internally through workplace discussions. If internal resolution fails, either party can escalate the matter to the Fair Work Commission (FWC) for further adjudication and potential orders.
The orders that the FWC can issue include compelling employees to respond to communications if their refusal is found to be unreasonable or preventing employers from taking disciplinary action against employees for refusing to respond outside of working hours. The FWC is mandated to commence dealing with applications within 14 days and must be efficient in resolving disputes.
In preparation for the new right, employers are encouraged to consider their existing policies, procedures, training and employment contracts to manage the change.
For more information, inquiries regarding the recent amendments to the Fair Work Act or assistance with your employment practices, please contact us at enquiries@griffinlegal.com.au.