The Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023 was passed by Parliament on 12 February 2024, ushering in a raft of changes that will impact employers across the board.
While Kingston Reid will shortly publish a broader insight regarding the changes, one particularly topical inclusion is a new ‘right to disconnect’, instigated by the Greens. This follows in some European countries’ footsteps, giving employees the right to ignore phone calls and emails from their employer (and third parties such as suppliers and customers) after work hours without being penalised, provided this refusal is reasonable.
However, one change under the new laws that will be unwound before ever taking effect is the prospect of criminal penalties for employers breaching Fair Work Commission (FWC) “stop” orders relating to the right to disconnect – a mistake in the bill that the Government has since (on 15 February 2024) introduced a further amending bill to address, even before the substantive reforms come into effect.
In this insight, we take you through what you need to know about the new right to disconnect.
For Kingston Reid’s comprehensive coverage of the Closing Loopholes reforms, visit the Workplace Law Reform: “Closing Loopholes” section of our website, here.
A new right to disconnect
The new “right to disconnect” laws – which have, understandably, attracted enormous commentary and criticism, were a last minute inclusion resulting from lobbying by the Greens.
These changes come into effect 6 months after Royal Assent (or for small businesses, 12 months after that). At the date of publication, the Act has not yet received Royal Assent.
There are several components for employers to understand about the new right:
- the right – employees will now have a positive right to refuse to monitor, read or respond to contact (or attempted contact) from their employer or third party, where the contact relates to work and which is outside their working hours, unless this is unreasonable;
When determining whether a refusal is unreasonable, the reasons for the contact, how it is made and level of disruption caused to the employee, the extent to which the employee is compensated for being available or working additional hours, the nature of the employee’s role and level of responsibility and the employee’s personal circumstances must all be taken into account;
- FWC powers – the FWC is empowered to deal with disputes about the right to disconnect, including making determinations about whether an employee’s refusal is unreasonable. This dispute resolution power includes a capacity for the FWC to make “stop orders”;
Depending on the issues in play, these may prevent an employee from unreasonably refusing contact, an employer from making contact or requiring an employee to respond, or an employer from imposing disciplinary action as a result of refusing contact;Before going to the FWC, the parties to the dispute must attempt to resolve the matter at the workplace level. Once a dispute is referred to the FWC, the FWC must start dealing with it in 14 days;
- Awards and guidelines – the FWC is required to ensure that modern awards include a term providing for the exercise of an employee’s right to disconnect, and also to make written guidelines in relation to the right to disconnect laws;
- Exceptions – there are various but narrow exceptions to these laws, predominantly relating to defence, national security and covert or international operations of the Australian Federal Police. It is notable that there are no more general exceptions (including for high paid employees) or capacity for exceptions to be made by regulation.
What is the impact of the new right to disconnect?
These are far-reaching reforms, with lots to unpack.
At the forefront is the fact that the refusal of an employee will, where not “unreasonable”, be the exercise of a workplace right for the purposes of the existing general protections framework.
Employers will need to tread very carefully when taking management or disciplinary action against employees for performance or conduct issues which may be connected with the exercise of such a right. For example, when making promotion decisions, it will be important that an employee is not treated unfavourably because they had refused to monitor or respond to emails outside their working hours.
Of course, this type of issue can arise in various ways, and we should expect to see this becoming a common component of general protections complaints.
Equally, employers will need to keep careful watch of how these provisions are interpreted and applied by the courts (and the FWC). For example:
- what is an employee’s “working hours” – an expression not frequently used in the Act?
- to what extent will out of hours contact be regarded as inherently reasonable for highly paid or senior employees, or employees in particular sectors?
- how will the “reason for the attempted contact” be factored into the reasonableness of refusal, if the employee’s refusal of the contact means they never knew of the reason?
- what other factors will be regarded as of key importance?
To be sure, this will be a space to watch.
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The views expressed in this article are general in nature only and do not constitute legal advice.
Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.