On 12 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No 2) Bill 2023 (Closing Loopholes (No 2)) was passed by Parliament, legislating additional changes to the Fair Work Act 2009 (FW Act).These amendments will come into effect six months after the Bill is given Royal Assent, or 18 months after for small businesses.
Among the amendments made by Closing Loopholes (No 2)) is the introduction of an enforceable right for an employee, where reasonable, to “switch off” and refuse contact by their employer, outside their ordinary working hours.
What is the right to disconnect?
The Closing Loopholes (No 2) will amend the FW Act to include an enforceable workplace right for an employee to disconnect from their employers and third parties (if the contact or attempted contact is related to an employee’s work).
Employees will now have a legislated right to refuse to monitor, read or respond to contact or attempted contact, outside working hours, unless such refusal is unreasonable. Contact itself is not defined, but likely includes emails, phone calls, and messages (text, teams, etc.).
The following factors may be considered to determine whether an employee’s refusal is unreasonable:
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- The reason for the contact or attempted contact
- How the contact or attempted contact is made and the level of disruption it causes the employee
- The extent to which the employee is compensated (including non-monetary compensation) to remain available to perform work during the period in which the contact or attempted contact is made or for working additional hours outside the employee’s ordinary work hours
- the nature of the employee’s role and the employee’s level of responsibility
- the employee’s personal circumstances (including family or caring responsibilities)
It will also be reasonable for employers to contact employees for practical reasons like rostering or about upcoming shifts, in an emergency, where there is concern for workplace health and safety, or where an employee receives appropriate compensation.
Employers should be mindful that whether the refusal is reasonable will be determined on a case-by-case basis.
To be clear, an employer is not prohibited from contacting the employee outside their ordinary working hours, as was originally proposed. Instead, the legislated right is limited to an employee’s right not to monitor, read, or respond to those communications, where doing so is unreasonable.
As this is a workplace right within the general protection (adverse action) provisions of the FW Act, employers are prohibited from taking adverse action against an employee because of that right.
For example, employers are prohibited from taking or threatening disciplinary action against the employee, dismissing an employee, or treating an employee differently than other employees because they have reasonably refused out of hours contact.
What if the employee and employer disagree whether refusal is reasonable?
If a dispute arises, the parties must first attempt to resolve the dispute at a workplace level in discussions between the parties. If those discussions are unsuccessful, either party may apply to the Fair Work Commission (FWC) to make an order under new s. 333P of the FW Act.
For an employer, that application would be to stop the unreasonable refusal from the employee. Or, in the case of an employee’s application, it would be to stop the unreasonable contact from the employer or to stop the employer from taking certain actions because of a belief that the employee’s refusal was unreasonable.
The FWC may order certain actions that it considers appropriate.
Importantly, the FWC must be satisfied that there is a risk that if an order is not made, the behaviour will continue. So, the right to apply for such orders is limited to current employees.
If orders are breached, civil penalties may be applicable.
What should employers do to prepare?
It may be sensible for employers to educate managers on the legislative changes and review the appropriateness of relevant policies, procedures and practices in the light of the changes.
If you would like any further advice on the right to disconnect or how the changes to the FW Act may impact your business, please contact our Employment, Workplace Relations, and Safety group at McCabes Lawyers.
Authors: Tim McDonald and Morgan Graham