As of 26 August 2024, many employees have the Right to Disconnect. The following article explains what it means to disconnect and what businesses can to do manage this new workplace right. 

Background 

The Right to Disconnect (RTD) was contained within the Fair Work Amendment (Closing Loopholes Bill No. 2) Act 2024 (Cth) and passed in parliament on the 12 February 2024. The legislation provides a right for employees to disregard contact or attempted contact from their employer, colleagues and third parties (e.g. clients) in specific circumstances. The rightis in effect on the following dates: 

• For businesses with 15 or more employees: 26 August 2024
• For businesses with less than 15 employees: 26 August 2025 

The Right to Disconnect 

This law does not put a prohibition on employers contacting their employees outside of work hours. It does, however, aim to prevent employers from unreasonably contacting their employees outside of work hours.  The right also allows employees to refuse to respond to contact or attempted contact from their employers, if it is reasonable. 

Employees working hours typically refer to the hours specified in their employment contract, or individual flexibility arrangement, if flexibility has been granted. Depending on the position there may be a requirement to work additional hours beyond the employee’s ordinary hours (reasonable additional hours) to fulfill their duties and meet the businesses’ business needs. These additional hours are considered part of the employee’s working hours.  

Reasonableness test 

When the law talks about whether something is reasonable or unreasonable it goes through a reasonableness test. The reasonableness test in this situation allows for flexibility but also provides an element of uncertainty for both parties.  

When assessing the reasonableness of the contact, the following are taken into account: 

• The reason for the contact or attempted contact 
• The level of disruption caused to the employee 
• The extent to which the employee is compensated* 
• The nature of the employee’s role, including their level of responsibility 
• The employee’s personal circumstances (such as their family or carer responsibilities) 
• The company’s organisational requirements 
• Whether the contact is required under a law of the Commonwealth, State or Territory (in which case, any refusal would be unreasonable) 

*Note – there is no amount of compensation that would remove an employer’s other obligation to provide a safe workplace. 

Dispute resolution 

An employer and employee may have differing opinions as to what constitutes a ‘reasonable refusal to monitor, read and respond to contact’. It is important to establish a process to ensure disputes have the opportunity to be dealt with internally before external parties become involved.  

 It is important here to note if an employee unreasonably refuses to monitor or answer contact attempts from their employer, the employer can take reasonable management action to correct the behaviour.  

If the employee continues to unreasonably refuse to monitor or answer, contact attempts then the employer can also make an application to the Fair Work Commission for a ‘Stop order’ to prevent the employee from unreasonably refusing to monitor, read or respond to contact or attempted contact.  

Managing the right 

To manage the right, it is re0commended employers: 

• Ensure any contact required outside of ordinary span of hours is reasonable and legitimate in relation to the productivity of your business; 
• Consider individual circumstances of any person a business wishes to contact outside of ordinary hours – e.g., family / social commitments; 
• Update job descriptions to reflect a requirement to be contactable outside the span of ordinary hours, should this be a requirement of any role; 
• Include relevant clauses within the employees employment contract that reflect a requirement to be contactable outside the span of ordinary hours, should this be a requirement of the employee’s employment; 
• Update any relevant policies to ensure you are compliant with the new legislation. A ‘Right to Disconnect Policy’ is recommended. 

 Contact the team to access several of these resources, including a Right to Disconnect Policy, and contract terms for inclusion in employment contracts.