Photo by Goran13, Unsplash stock photo ID:1126811186

Briefly

· Employees will soon gain a statutory ‘right to disconnect’ (or RtD) from work-related contact outside their normal work hours, unless doing so is unreasonable.

· There is no prohibition on employers seeking to make contact with employees out of hours as such, but employers cannot take ‘adverse action’ against employees who exercise their RtD, and employees faced with persistent employers can apply for ‘stop unreasonable out of hours contact’ orders from the Fair Work Commission.

· Most employees will gain the RtD on 26 August 2024, except for small business employees, who will gain the right on 26 August 2025.

· Employers can take proactive steps now to prepare their workplaces in readiness.

Background

The RtD laws respond to a Senate report finding that ‘availability creep’ – the encroachment of personal, out of work hours – negatively affects workers’ productivity and wellbeing. Although employers already have a common law duty of care to provide a safe system of work, these reforms aim to further protect employees in light of an emerging culture and normalisation of continuous workplace connection, increasing the expectations of out of hours work. Most employees will gain the RtD on 26 August 2024, except for small business employees, who will gain the right on 26 August 2025.

Right to disconnect provisions

The RtD provisions were enacted on 26 February 2024 through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. They apply to all national system employers (which is almost all employers operating in or from the ACT) and their employees.

The operative provisions, which add to the Fair Work Act 2009, are sections 149F and 333M. Commencement date for these provisions is 6 months from the date of enactment.

Section 333M creates the RtD. This empowers employees to ‘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’.

Later subsections extend the protection beyond employer contact, to work-related contact by third parties.

‘Contact’ is not defined, so assume it will be broadly interpreted.

Disconnection not to be unreasonable

With rights usually comes responsibility. To try to balance employee and employer interests, the RtD is not absolute, and refusal of out of hours contact cannot be ‘unreasonable’.

In determining whether a refusal is unreasonable, section 333M(3) requires various and obvious factors to be taken into account. The list of factors set out in the Act include:

(a) the reason for the contact or attempted contact;

(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

(c) the extent to which the employee is compensated (monetarily and non-monetarily):

(i) to remain available to perform work during the period in which the contact or attempted contact is made; or

(ii) for working additional hours outside of the employee’s ordinary hours of work;

(d) the nature of the employee’s role and the employee’s level of responsibility; and

(e) the employee’s personal circumstances (including family or caring responsibilities).

While the Act does list as a factor whether the contact is part of a pattern, the statutory list is not exhaustive. Disputes about what is or is not unreasonable can be taken to the Fair Work Commission (after workplace level discussions have been exhausted), so expect some interesting case law to follow over time.

No adverse action

The RtD is a ‘workplace right’ for the purposes of the Fair Work Act under section 333M(4). This characterisation enlivens the general protections regime of the Fair Work Act, which prohibits a person from taking ‘adverse action’ against another person because they have exercised a ‘workplace right’ (section 340). So, while the Fair Work Act does not actually prohibit employers from seeking to make contact with employees out of hours, it does prohibit employers from taking ‘adverse action’ against employees who exercise their RtD. Compensation and fines can be awarded against transgressors.

Let’s assume Jayden works for ABC Pty Ltd. There is nothing to stop ABC from attempting to contact Jayden out of hours, but if Jayden refuses that contact (and is not unreasonable in this regard), ABC cannot subject Jayden to say, performance management or disciplinary action, or any other ‘adverse action’ because of his refusal, without breaching the general protections provisions of the Fair Work Act.

Stop Orders

Where employers persist in attempting unreasonable out of hours contact, or employees persist in unreasonably refusing out of hours contact, the Fair Work Commission has new powers to make orders to stop such actions. The powers will operate in a manner similar to the current stop bullying jurisdiction. Stop orders can also be made where the employee’s refusal to monitor, read or respond to contract is not unreasonable, and there is a risk that the employer will take disciplinary or other action against the employee because of that refusal.

So, if Jayden were at risk of disciplinary action by the ABC for exercising his RtD, he could apply for a Stop Order from the Fair Work Commission (separate from any general protections application).

Preparing for change

Employers really need to think about why, how and when they contact their employees out of hours, or allow their clients to do so.

Where practicable, they should review their systems of work, and align operations to prevent excessive or unreasonable contact with employees beyond normal work hours. Employers may wish to inform clients and other third parties of the need to reassess expectations about after-hours work communication.

Where this is not practicable and out of hours contact is considered to be a part of the job, contact expectations should be made explicit (in the job description, contracts of employment and/or enterprise agreements). Given the factors at section 333M(3), it would be wise for employers to also make it clear if salary, allowances or other monies are paid or set at a level in compensation for, or contemplation of, such out of hours contact.

Strategic employers should also develop and implement policies that accurately articulate the RtD, clarify work-related contact outside work hours, and set out how workplace disputes will be resolved. Employers should also consider training managerial staff to ensure employees who exercise their RtD workplace right are not subject to unlawful adverse action.

More help?

The RtD is a new right that will take some time to be embed. Public Sector employers may care to refer to the Australian Public Service Commission’s recent Guidance on the Right to Disconnect in the Public Sector for more information.

For those outside the public sector, the Fair Work Commission has a statutory responsibility to publish guidelines on the operation of the provisions, though based on a recent statement from the FWC President Adam Hatcher, we will not expect these Guidelines to be published until well after 26 August 2024.

Of course, both the Fair Work Commission and Fair Work Ombudsman website contain introductory information about the RtD.

Time to log off.

Gabrielle Sullivan is Principal at Sullivans Legal Co. She is an Accredited Specialist in Employment & Industrial Law. She also has 20+ experience in the practice of civil law, is a GAICD qualified company director and long-term Doyle’s listed ‘Best Lawyer’. The author thanks Alistair Davidson and Brook Richardson for their research and writing assistance. For further information see: www.sullivanslegal.com.au