Right to Disconnect Laws
From 26 August 2024, employees of non-small business Employers (so Employers with 15 or more employees) will have a new right to disconnect, and are not required to monitor, read or respond to their Employer (or third parties) outside of working hours, unless refusing to do so is unreasonable.
For small business Employers (so Employers with less than 15 employees), the new right to disconnect laws will commence from 26 August 2025.
These new laws do not prohibit an Employer from contacting employees, nor does it prevent employees from contacting each other, including across various time zones a business may operate in. Rather, there will be a right of the employee to refuse to monitor, read or respond to contact, or attempted contact outside of working hours, when they are not expected to be working or paid to be working, so long as doing so is not unreasonable.
There is some guidance, which is not exhaustive, but will help to determine whether an employee’s refusal to monitor, read or respond to such contact is unreasonable, including:
the reason for the contact or attempted contact;
the method of contact and level of disruption it causes the employee;
whether the employee is being compensated to remain available or perform additional work outside
ordinary hours;
the nature of the employee’s role and level of responsibility; and
the employee’s personal circumstances (including family or caring responsibilities).
An employee’s right to refuse such Employer or work-related contact (or attempted contact) out of
hours will be a workplace right, so the general protections (adverse action) provisions currently
in the Fair Work Act 2009 (Cth) will apply, meaning that Employers will be prevented from taking adverse action
against an employee who exercises or proposes to exercise this right to disconnect.
Modern Awards will be varied to include right to disconnect terms by 26 August 2024. Specific rules will be added to Modern Awards which will explain how this new right will apply to different industries and occupations.
The Fair Work Commission will be able to deal with disputes promptly if they cannot be resolved at the workplace level, including by making stop orders, or dealing with a dispute as it considers appropriate.
What do Employers need to do?
Review current out-of-hours contact practices, and develop strategies for managing restrictions for making contact;
Consider having discussions with employees to talk about out of hours contact and set expectations that suit the workplace and the particular duties/roles and responsibilities;
Review, understand and comply with the specific rules that will be release by 26 August 2024 in the Modern Awards to understand how this right will apply in your industry and various occupations. Employers should sign up to the FWC subscriptions to be alerted as these rules are released: Subscriptions | Fair Work Commission (fwc.gov.au);
Review employment agreements and internal policies to support any requirements for reasonable contact out of hours, ensuring any work outside of hours is clearly defined; and
Upskill Team Leaders/Supervisors/Managers on these new laws, including what may be considered reasonable contact outside of working hours, to ensure practices are compliant across your business.
Useful Resources
Contact IR Legal Solutions for specific advice and support for your business.
This content is not a substitute for legal advice and is for general information only. Employers should obtain advice specific to their circumstances and business operations, and not rely on this general publication as legal advice.
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