Unplugging After Hours – The Right to Disconnect

Co-authored by: Brooklyn Younger

KEY TAKE OUTS:

• The new legislation that prevents Employers from contacting their Employees outside of work hours.
• This allows Employees to refuse to monitor and refuse to respond to all work-related contact outside of work hours.

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Introduction

The Right to Disconnect has been added as an amendment to the Fair Work Act under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 and is set to take effect in approximately 5 months’ time. As a result of this amendments, there will also be several challenges for employers who run a flexible work arrangement.

The Right to Disconnect, what is it?

An employee’s Right to Disconnect allows an employee to refuse to monitor, read or respond to contact, or attempted contact, from an Employer outside of the employee’s working hours unless their refusal is unreasonable; This contact may take the form of phone calls, emails, text messages. This Right to Disconnect also extends to a third party if the reasoning for their contact is related to the employee’s work and is outside of the employee’s working hours. However, this new legislation does not prevent an employer from sending an email to an employee outside of work hours, but rather grants the employee the right to not respond until a reasonable time.

What is an Unreasonable Refusal?

When deciding if an employee’s refusal is unreasonable, the following factors must be considered:

• The reason for the contact or attempted contact;
• How the contact or attempted contact is made and the level of disruption that is caused for 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 their level of responsibility; and
• The employee’s personal circumstances, such as family or caring

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Disputing the Right to Disconnect

If there is a dispute between an employer and an employee by either;

1. The employee has refused to monitor, read, or respond to contact or attempted contact and the employer believes that the refusal is unreasonable, or
2. The employer has asserted that the refusal was unreasonable, and the employee disagrees; then a dispute can be lodged.

It is mandatory that when the dispute is first raised, both parties attempt to resolve the dispute at the workplace level, which may involve a discussion within the regular workplace. However, if these discussions do not eventuate into a resolution, a party to the dispute may apply to the Fair Work Commission to either make an order to stop refusing contact or to stop taking certain actions, or otherwise deal with the dispute.

The implementation of a policy and procedure to deal with such disputes is recommended.

How can Coutts Lawyers help Employees?

As an employee, it can be difficult to understand whether your employers actions amount to a breach of your workplace rights. Here at Coutts, our specialised Employment Law team will be able to assist you in understanding your entitlements and identify potential breaches in relation to the Right to Disconnect, and other statutory workplace rights.

How can Coutts Lawyers help Employers?

With the everchanging nature of Law, it is important that you keep the employment contracts and workplace policies for your employees up to date. We advise that employers should start to consider their existing contracts and policies and seek assistance from our expert Employment Law Team to make the relevant changes.

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