Background

The concept of a right to disconnect is not new. France introduced the right in 2017 requiring workplaces to negotiate agreements with their staff on the right to ignore devices after working hours. Similarly, in Portugal, it is illegal to contact employees outside working hours, with significant financial penalties for employers that fall foul of these laws.

Importantly, the right to disconnect in Australia is not a prohibition on an employer contacting an employee at any time. Rather, it sets the expectation that an employer can't always expect an employee to read their message or respond to communications. Employers should be mindful about what represents reasonable contact in the context of their employees, business, industry and workforce.

One of the driving factors justifying the right to disconnect, is the increasing connectedness to digital technology associated with the rise of flexible work arrangements. A 2023 study by the Australian Institute found that employees spend on average 5.4 hours per week doing unpaid work after their usual hours, costing workers on average AUD11,000 per year. The increasing expectation to remain digitally connected has led to serious concerns for employee health, welfare, and work-life balance, including by contributing to anxiety and burnout.

What is the 'right to disconnect'?

From 26 August 2024 (or 26 August 2025 for small business employers) employees will have a new workplace right to disconnect:

"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."

This new right also extends to contact from a third party (such as a client or customer), where the contact relates to work.

The right to disconnect is a 'workplace right', affording eligible employees protection under the general protections regime of the Fair Work Act 2009 (Cth).

Contact is not defined, but it likely extends to all forms of communication, including contact or attempted contact by email, phone, text, instant messaging or otherwise.

Unfortunately whether or not the right of refusal exists in a particular scenario, will vary depending on the specific facts and circumstances of the scenario.  This is because of how the right is framed in the legislation.

The key consideration in determining whether or not the right exists in a particular instance is whether it is objectively unreasonable for the employee to refuse to monitor, read or respond to the contact. Whether the refusal to monitor or respond to contact is unreasonable will be determined having regard to the following factors:

1. The reason for the contact or attempted contact (including where contact, or attempted contact is required by law)
2. How the contact or attempted contact is made and the level of disruption the contact, or attempted contact causes the employee
3. The extent to which the employee is compensated (including non-monetary compensation):
   1. To remain available to perform work during the period in which contact or attempted contact is made; or
   2. For working additional hours outside of the employee's ordinary hours of work
4. The nature of the employee's role and the employee's level of responsibility
5. The employee's personal circumstances (including family or caring responsibilities)
6. Any other relevant factor.

Because these factors depend in part on an analysis of the particular circumstances (including, for example, what the employee may be doing at the time) it is not possible for employers to determine definitively in advance whether or not refusing to monitor, read or respond to contact is reasonable.

For example, you can envisage a highly paid senior global role, where objectively there would be an expectation for the employee to be available beyond normal working hours.  However, there may be special personal circumstances which may mean that it is not unreasonable for such an employee to refuse to respond to contact.  For example, they may be attending their child's graduation or a funeral. This does mean that employers will need to take care and consider all circumstances before penalizing employees for not being responsive to certain communications.

Following consultation, the Full Bench of the FWC finalised the new “right to disconnect” model term on 23 August 2024, which will soon be inserted into all 155 modern awards. The model term largely mirrors the workplace right under the legislation. However, it also clarifies that employers may require employees to monitor, read or respond to contact, or attempted contact, from the employer outside of the employee's working hours where after hours work is contemplated by the award, such as where:

• The employee is being paid a stand-by allowance and the reason for the contact is to notify the employee that they are required to attend or perform work or give other notice about the stand-by.
• The employer is contacting the employee to notify them of an emergency roster change or a recall to work.

The above is not intended to be exhaustive as to the circumstances in which an employer may contact or attempt to contact an employee outside of their working hours.

The FWC has promised to publish written guidelines on the right to disconnect, but only after it has had a chance to address some disputes about the practical application of this right. The term will also be subject to a further review by the FWC in approximately 12 months' time.

What if there is a dispute?

Disputes as to whether the refusal to monitor, read or respond is unreasonable or not must first be attempted to be resolved at the workplace level, by discussions between the employee and employer.

If the dispute cannot be resolved at the workplace level, the employee or employer may apply to the Fair Work Commission (FWC) to make an order to prevent offending conduct, and/or otherwise deal with the dispute (through conciliation, mediation, or by consent arbitration) (Note – whilst the parties can appoint a person or industrial association to represent them, permission from the FWC is required to be represented by a paid agent, or lawyer.)

The FWC can, if it is satisfied that;

• The employee's refusal was unreasonable, make an order to prevent the employee from continuing to unreasonably refuse further contact, or
• The refusal was not unreasonable, and:
  • There is a risk that the employer will take disciplinary action against the employee, make an order to prevent the employer from taking the action; or
  • The employer will continue to require the employee to monitor, read or respond to contact despite the refusal, make an order to prevent the employer from continuing to require the employee to monitor, read or respond to contact.

The FWC cannot order a financial penalty in relation to the dispute, however it can award a penalty for breaching one of the above orders of up to AUD18,780 for an individual or AUD 93,900 for a corporation.

What guidance is available?

The FWC has announced that it will be releasing guidelines on the right to disconnect once it has had a chance to properly consider disputes that arise in relation to the new right. These guidelines likely will not be available for some time.

The FWC has also just finished its consultation process on the term that is required to be inserted into all modern awards. A finalised model term was published by the FWC on 23 August 2024.

Recommended actions

There are a number of actions that you can take to ensure your business is well equipped to handle the right to disconnect. We recommend that employers consider carefully what are reasonable expectations of their employees in relation to after-hours contact, having regard to the nature of their duties and responsibilities, and their job level.  It is important that employers lay out these expectations in advance, in their contracts of employment, job descriptions, or communications to staff.

Employers should then conduct training and have discussions with senior employees and managers about:

• Differing expectations across the workforce
• The need for contact outside of work hours
• When and how contact will be made outside of work hours in consultation with the affected employee
• Whether existing settings around handovers, a 'duty' roster or similar system is needed
• What contact method should you use? Has the employee expressed a preferred method of contact?
• How to manage third party contact including from clients, customers and the public which is outside of work hours

Before contacting an employee, you should consider:

• Is the employee covered by a Modern Award? and if so, will the right to disconnect term in the Modern Award be more restrictive?
• Is the employee on annual leave, sick leave, carers leave?
• How urgent is the contact? Can you wait until the employee is back at work?
• When are you making contact? How long will a response take?
• Have you considered the employees total workload, and recent overtime already worked?
• Does the employee receive any compensation such as additional leave, TOIL, or overtime pay?
• Has the employee shared their personal circumstances with you, that would make it difficult to be contacted or respond to contact after hours? Don't assume that a person with carer-responsibilities is unable to work overtime.
• Is it important for the employee to be able to disconnect? Do they work in a high stress role or industry? Are they exposed to emotionally or physically burdensome work?
• Is the employee aware that they should be contactable outside of working hours?
• Is there another employee who should be contacted instead?

More importantly employers should consider installing a review process for circumstances where a manager believes that an employee should be cautioned or suffer some disciplinary action (or even an adverse performance review) because the employee has not been responsive to after-hours contact.  This process should ensure that a comprehensive review of each communication is undertaken, taking into account the factors we have set out above, including any expectations previously set by the employer.