The right to disconnect will take effect on Monday, 26 August 2024 for most employers and employees. For small business employers, it will start on Tuesday, 26 August 2025.
The right to disconnect does not prohibit employers from contacting employees outside working hours, nor does it grant employees an absolute right to ignore such contact. Rather, the right to disconnect allows employees to refuse to monitor, read, or respond to work-related communications outside their working hours. However, the refusal must be reasonable.
What is conduct outside of working hours?
Since the right to disconnect applies to contact outside of working hours, the first step is to determine what an employee’s working hours are. This isn’t as straightforward as you might think. Determining whether contact occurs outside of working hours involves consideration of the employee’s work schedule, pay, and other job conditions.
Contact outside paid hours, whether at regular or overtime rates, typically falls under the right to disconnect. However, employees paid above the statutory minimum, especially those with roles requiring additional hours, may have different boundaries. For example, contracts often state that employees work between set hours, plus reasonable additional hours as necessary to perform their duties.
Senior managerial employees and on-call employees have specific considerations. For example, on-call employees receiving an allowance cannot refuse contact during their on-call hours.
When is it unreasonable for an employee to disconnect?
Section 333M(3) of the Act lists a number of factors that are relevant to whether it’s reasonable for an employee to disconnect:
- the reason for the contact or attempted contact;
- how the contact or attempted contact is made and the level of disruption it causes the employee;
- the extent to which the employee is compensated:
- to remain available to perform work during the period in which the contact or attempted 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; and
- the employee’s personal circumstances (including family or caring responsibilities).
No single factor is more important than the others. Further, while the listed factors must be considered, they do not limit what can be taken into account. Other circumstances may also be relevant, for example:
- The frequency of out-of-hours contact. Frequent contact over a short period would likely support the employee’s right to disconnect.
- Any agreement with the employee regarding out-of-hours contact.
- The content of the contact. For instance, if the employer stated that a response was not required until the employee resumed work.
Examples of the right to disconnect in practice
Example 1: reasonable refusal
Scenario: Jane is a retail worker with sole responsibility for her two children aged 3 and 5. She receives a text message from her manager at 8 PM on a Friday, asking her to answer questions about stock levels.
Application: Jane is not on call and is not compensated for availability outside her scheduled hours. Given that the request is outside her working hours and she has family commitments, Jane can reasonably refuse to respond to the message.
Example 2: unreasonable refusal
Scenario: Mark, a senior IT manager, receives an urgent email at 9 PM from his employer about a critical system failure that needs immediate attention.
Application: Mark’s role includes responsibilities that may require out-of-hours attention, and he is compensated accordingly. Refusing to respond in this situation would likely be deemed unreasonable, given the urgency and his responsibilities.
Example 3: ambiguous
Scenario: Sarah, a project coordinator, receives a call from a client at 7 PM on a weekday, asking for an update on a project. Sarah’s contract does not specify out-of-hours availability, but she is often contacted outside regular hours.
Application: Sarah’s response would depend on several factors, including the frequency of such contacts, her compensation, and her personal circumstances. If the contact is frequent and disruptive, she might reasonably refuse. However, if it’s a rare occurrence and she is compensated for additional hours, she may need to respond.
Dispute resolution
In the case of disputes, parties should first attempt to resolve issues internally. If unresolved, they may seek intervention from the Fair Work Commission (FWC), which can issue broad orders dealing with the right to disconnect.
Adverse action / general protections
The right to disconnect is a workplace right under the Fair Work Act. This means that its unlawful for an employer to take adverse action against an employee that exercises their right to disconnect. Adverse action could include demotion, performance management, dismissal or even overlooking an employee for promotion.
If you need to manage an employee who has exercised their right to disconnect, it is crucial to proceed with caution. Ensuring compliance with these laws is essential to avoid any legal repercussions.
Practical steps businesses can take
To prepare for the implementation of the right to disconnect employers should:
- Communicate with employees: Discuss and set clear expectations regarding out-of-hours contact. This is a two-way street and the aim should be to reach an agreement with team members about parameters of contact.
- Review contracts: Ensure employment contracts reflect the new provisions and clarify roles that may require out-of-hours availability.
- Develop policies: Create or update workplace policies to align with the right to disconnect, providing guidance on reasonable refusals and dispute resolution.
Page Seager is assisting clients to effectively manage the right to disconnect. If you would like us to provide your managers with practical guidance, please contact Emily Creak or Joe Mullavey.
| Emily Creak Principal M: 0400 955 183 E: ecreak@pageseager.com.au |
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| Joe Mullavey Principal M: 0416 794 061 E: jmullavey@pageseager.com.au |
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Published: 13 August 2024
