Recent amendments to the Fair Work Act 2009 (Cth) (FW Act) provide employees with new rights to disengage from work-related communications outside of their regular working hours. These upcoming changes affect employers across all industries, and employers whose employees regularly monitor communications or respond to enquiries from third parties outside of their core working hours need to be aware of these changes.
These new protections for employees, known as the “right to disconnect”, mean that:
- An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable; and
- An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party (e.g. a client) if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.
Once the right to disconnect comes into force, the protections will be a workplace right, meaning employers will be prohibited from taking adverse action against an employee because that employee has the right, has exercised the right, or proposes to exercise the right.
Without limiting the matters which an employer must take into account in determining whether an employee’s refusal to be contacted is unreasonable, an employer must consider the following factors:
- 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 (which may include 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 of the employee’s ordinary working hours;
- the nature of the employee’s role and the employee’s level of responsibility; and
- the employee’s personal circumstances (including family or caring responsibilities).
However, an employee’s refusal to monitor or be contacted by their employer, or from a third party will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.
If there is a dispute about what amounts to a reasonable or unreasonable refusal to be contacted, the parties to the dispute must attempt to resolve the dispute at the workplace level through discussions between the parties. If this fails to resolve the dispute, an employer or employee can apply to the Fair Work Commission (FWC) for assistance in resolving the dispute, including by arbitration. Alternatively, a party may apply to the FWC for a “stop” order to:
- prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact;
- prevent the employer from taking action (including disciplinary action) against the employee because of the employer’s belief that the employee’s refusal is unreasonable; or
- prevent the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.
Civil penalties will apply to a party in breach of a “stop” order. Currently, a breach of a “stop” order may also expose the party in breach to criminal penalties. However, the exposure to criminal penalties is expected to be removed from the legislation prior to commencement.
The right to disconnect will come into force in:
- approximately 6 months’ time for employers with 15 or more employees; and
- approximately 18 months for employers with less than 15 employees.
This will provide employers with time to update policies and have the necessary discussions with employees who may need to be contacted outside of work hours.
Practical steps for employers to consider
A number of enterprise agreements already contain “right to disconnect” provisions. To the extent that an enterprise agreement provides more favourable terms than these new protections, the enterprise agreement will continue to apply.
In due course, all Modern Awards will be amended to include reference to the new right to disconnect. Each industry will need to consider the impact of the new provisions in the context of the relevant Award, including where an employee’s “ordinary hours” are stipulated in an Award. Some guidance from the FWC is expected to be forthcoming in the short to medium term.
Employers will need to carefully consider how they can appropriately strike the balance between compliance with these new employee rights and operational efficiency.
Over the coming six or eighteen months, employers may wish to consider taking the following actions:
- Reviewing and implementing workplace policies regarding work availability and electronic communications. Workplace policies should reference an employer’s policies regarding monitoring of electronic communications outside of the employee’s “core hours” to ensure any contact by an employer or a third party (e.g. a client) does not increase their average hours of work or impact on their days off. This will be particularly important for any employees earning minimum Award rates.
- Updating grievance/dispute resolution policies to set out how a dispute about an employee’s right to disconnect will be managed at the workplace level prior to it being escalated to the FWC by either party.
- Reviewing employment contracts, particularly for those employees earning above Award wages or Award-free employees, to include a clause that expressly acknowledges that an employee may be required to be contacted outside of their “core hours” and the employee’s salary compensates them for that time worked.
- Consider whether, if an employee exceeds an average of 38 hours’ work per week because of additional communications, the additional hours will be paid as overtime rates or whether time off in lieu can be agreed pursuant to the terms of any applicable Award. Employers should ensure this is then appropriately discussed with employees and documented.
