The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 was passed recently and makes several important changes the Fair Work Act 2009 (“the Act”). The biggest change to the Act is inclusion of a ‘right to disconnect’, specifically a right to disconnect from work outside working hours. It is important to be aware of this incoming change as it may impact your ability to contact your employees after-hours in relation to work.
The changes to legislation have been summarised as follows:
What is the right to disconnect?
The right to disconnect basically means that employees have the right to refuse to monitor, read or respond to contact from an employer outside of their ordinary working hours unless the employee’s refusal is unreasonable.
This means that while you can still contact your employees outside their ordinary working hours, employees now have the right to refuse such contact by not responding to calls, texts, emails or other methods of contact.
Please note that the employee’s right to disconnect extends to not only the employer but any third party, which may include colleagues, customers, or clients.
When is an employee’s considered unreasonable?
As noted above, an exception to the right to disconnect is when the employee’s refusal is unreasonable. While no definition of “unreasonable” has been provided, the following factors will be taken into account when determining if an employee’s refusal to respond to contact is unreasonable:
- The reason for the contact;
- How the contact is made and the level of disruption the contact causes the employee;
- The extent to which the employee is compensated:
- to remain available to perform work during the period in which contact is made; or
- for working additional hours outside of the employee's ordinary hours of work;
- The nature of the employee's role and the employee's level of responsibility;
- The employee's personal circumstances (including family or caring responsibilities).
The legislation also excludes WHS laws from the scope of this workplace right, which suggests some leeway with regards to contact relating to workplace health and safety.
Can I discipline my employee for refusing work related contact outside of their ordinary hours?
As the right to disconnect will be a workplace right in the Act, any adverse action against an employee for enforcing this right can leave an employer exposed to general protections claims at the Fair Work Commission (“the FWC”).
Employers should be aware that adverse actions could include dismissal (or threat of dismissal) and actions that may affect that employee’s position in the workplace (for example, cutting shifts, reducing hours, refusal to promote, demotion). Employers should therefore be very cautious when raising concerns with performance or conduct if the performance or conduct relates to an employee choosing not to respond to contact outside their working hours.
What can my employee do to enforce their right to disconnect?
It is important to be aware of the avenues available to employees to enforce their right to disconnect to ensure that you, as the employer, are prepared for any outcomes around this issue as lack of preparation may leave you blindsided or incurring costs in terms of time and money.
With the new legislative changes, employees may apply to the FWC to make orders against the employer to cease contact with the employee outside working hours. This can only be done after attempts to resolve the dispute at a workplace level.
Please note that at the time of writing, breaching these orders can result in criminal penalties. While there are discussions for potential new legislation that prevent employers from facing criminal penalties for breaching these orders, this has yet to come to pass.
Regardless of criminal penalties, breaching the orders can result in heavy fines imposed on you or your business.
Does the new legislation provide any avenues to compel my employee to be contactable after working hours?
In addition to the above, the new changes allow the employer to apply to the FWC for orders to compel the employee to stop refusing contact with the employer if attempts to resolve the dispute at a workplace level have failed.
The FWC will consider whether the employee’s refusal to respond to contact is unreasonable based on the factors outlined above and it is noted that the FWC will be preparing guidelines about the operation of the right to disconnect, which will likely provide more information on this point.
What can I do?
- Consider the extent your employees are currently being contacted outside working hours to determine if this new change affects your business;
- Review employment contracts and workplaces policies to ensure compliance with the new changes;
- Prepare workplace policies addressing after-hours contact and the usage of work technology outside working hours;
- Training managers in your business to understand their obligations under the new changes and how to manage the need for contact after working hours;
When do these changes come into effect?
These changes will come into effect 6 months after receiving Royal Assent.
If you need assistance with ensuring your business is compliant with the new changes, you can get in touch with NECA at [email protected].
Please note that this article is not intended to provide legal advice, but rather constitutes general guidance on the upcoming changes. For more information, you may wish to contact our Workplace Relations team to assist you further.