In February, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 passed the Australian Parliament. The bill includes the provision of a ‘right to disconnect’ when away from work, which allows employees to ignore unreasonable workplace contact outside of work hours.
The right to disconnect has already been legislated in countries in Europe, Asia, North America and South America. In Australia, the right to disconnect has been adopted in at least 56 enterprise agreements (such as those for teachers, police and various financial institutions).
Section 333M will allow an employee to refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of working hours, unless the refusal is unreasonable. An employee may also make the same refusal to attempted contact from a third party, such as a client, where it relates to the employee’s work.
In considering whether a refusal is reasonable, the following must be taken into account:
the reason for the contact or attempted contact;
how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
the extent to which the employee is compensated:
(i) to remain available to perform work during the period in which the contact or attempted contact is made; or
(ii) 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).
Workplace Minister Tony Burke has said this will protect the rights of workers to set a demarcation between the end of the working day and their personal lives, including on weekends. He said that it is not a demand of the employer ‘not to make contact’, but a concept that a worker will not be punished for not checking their phone or other relevant work-related platforms outside of work.
The full impact of the right will likely remain uncertain for some time.
All modern awards will need to include a right to disconnect term, with rules about how the new right will be tailored for different sectors. The Fair Work Commission will be required to create guidelines on how the new rules will work.
The implications of the right will depend on what is considered unreasonable contact. Employees and employers will need to first attempt to resolve disputes in the workplace before escalating to the Fair Work Commission. The Fair Work Commission may punish employers with a fine if they do not comply.
Employers relying on flexibility with contacting employees outside of regular work hours will likely need to reassess their workload management and communication practices. Workplace Minister Tony Burke expects that employees and employers will negotiate more formal arrangements for out of hours contact through workplace agreements and conditions for award workers would be updated by the Fair Work Commission.
The Right to Disconnect will commence six months after the Act receives Royal Assent (and 12 months for small business owners). Members may wish to contact the Victorian Hospital Industrial Association, who has offered to answer any further questions.