The right to disconnect from work is set to become law in Australia. Although it won’t kick in for another six months, this news has already made the rounds in the media – leaving many people wanting to know what it means for their day-to-day.

Importantly, the new law focuses on an employee’s right to refuse contact outside of work hours and doesn’t place a general obligation on employers not to contact employees. This would only be the case if an employee applies to the Fair Work Commission and they make an order preventing contact.

Let’s look at how it will work.

What is the right to disconnect?

All employees will have a right to refuse to monitor, read, or respond to contact from their employer outside of the employee’s working hours. Contact includes attempted contact.

This also applies to contact from third parties related to the employee’s work, such as clients or customers.

This is a workplace right for the purpose of the general protections provisions of the Fair Work Act. Employers are therefore prohibited from taking adverse action against an employee because of this right.

The employee’s refusal must not be unreasonable

The right to disconnect does not apply if the employee’s refusal is unreasonable.

The following is a non-exhaustive list of factors that must be considered in determining whether a refusal is unreasonable:

• the reason for the contact;
• how the contact is made the level of disruption the contact causes the employee;
• the extent to which the employee is compensated to remain available to perform work during the period in which the contact is made (including non-monetary compensation);
• the extent to which the employee is compensated for working additional hours outside of the employee’s ordinary hours of work (including non-monetary compensation);
• the nature of the employee’s role and the employee’s level of responsibility;
• the employee’s personal circumstances (including family or caring responsibilities).

A refusal will be unreasonable if the contact is required under a law of the Commonwealth, a State or a Territory.

Disputes about an employee’s right to disconnect

If there is a dispute between an employer and employee about the right to disconnect, the parties must first attempt to resolve the dispute by discussions at the workplace level.

If this does not resolve the dispute, a party can ask the Fair Work Commission to deal with the dispute. They can:

• ask the Commission to make one of the orders set out below;
• have the dispute dealt with through mediation, conciliation, making a recommendation, expressing an opinion or arbitration (by consent).

Orders to prevent an employee from refusing contact

If the Commission is satisfied that:

• an employee has unreasonably refused to monitor, read, or respond to contact outside of working hours; and
• there is a risk that the employee will continue to do so,

the Commission can make any order it considers appropriate to prevent the employee from continuing to unreasonably refuse to monitor, read, or respond to contact.

However, the Commission cannot make an order requiring payment of a monetary amount.

Orders to prevent an employer from taking action against an employee

If the Commission is satisfied that an employee’s refusal to monitor, read, or respond to contact is not unreasonable, it can make orders to prevent the employer from taking certain actions against the employee.

Orders preventing disciplinary action

If there is a risk that the employer will take disciplinary or other action against the employee because of the employer’s belief that a refusal is unreasonable, the Commission can make any order it considers appropriate to prevent the employer from taking that action.

Orders preventing employer from requiring contact

If there is a risk that the employer will continue to require the employee to monitor, read, or respond to contact despite the employee’s refusal to do so, the Commission can make any order it considers appropriate to prevent the employer from continuing to require the employee to monitor, read or respond to contact.

However, in no case can the Commission make an order requiring the payment of a monetary amount.

Diving deeper: what does the right to disconnect mean for…

• Small business employers? The right to disconnect will apply to employees of employers with less than 15 employees, but not for another 18 months.
• Right to disconnect terms in modern awards? The Fair Work Commission is required to introduce terms into all modern awards that provide for the exercise of an employee’s right to disconnect.
• Interaction with enterprise agreements? If an employee is covered by an enterprise agreement that has a right to disconnect term that is more favourable than the new rights, the right in the enterprise agreement will continue to apply.

What’s next?

Although the changes won’t come into effect for 6 months, it is important to be prepared for this change when it comes into effect. If you have any questions about the right to disconnect or any other aspect of the Closing Loopholes legislation, get in touch to speak to our team today.