Australia: Call me, maybe? Looping you in on the 'right to disconnect'

Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023

In brief

Parliament resumed this week and was busy debating the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Closing Loopholes 2). A focus this week has been on the 'right to disconnect' – controversially, not part of the original Closing Loopholes Bill.

Yesterday, 8 February 2024, Closing Loopholes 2 passed the Senate.  It's not law yet – but here's what we know about its current form.



What we know so far – the right to disconnect

  • What is the right to disconnect? The "right to disconnect" refers to an employee's entitlement or ability to "switch off" and refuse to respond to contact from their employer outside of the employee's working hours.
  • What will the right to disconnect look like?  The right will allow an employee to refuse contact from their employer and relevant third parties who contact or attempt to contact an employee after-hours, unless that refusal is unreasonable. Contact is not defined, but safely includes emails, texts, social media messages and phone calls.
  • Will an employer be prohibited from contacting workers after-hours?  No. The prohibition on an employer contacting employees after-hours was removed from the proposed legislation. The right is now limited to an employee's right not to monitor, read or respond to after-hours communications from their employer or a third party, where the refusal is reasonable.
  • What will be unreasonable contact? The factors set out to help assess reasonableness include:
    • the reason for the contact
    • how the contact is made and the level of disruption it causes the employee
    • the extent to which the employee will be compensated (monetary or otherwise) to remain available to perform the work, or for working additional hours
    • the nature of the employee's role and their level of responsibility
    • the employee's personal circumstances (including family or caring responsibilities)
  • The contact or attempted contact will not be unreasonable where it is required under an existing State, Territory or Commonwealth law.
  • Given the inclusion of an employee's personal circumstances, employers will need to consider after-hours contact on a case-by-case basis rather than implementing a one-size fits all policy.
  • Will any after-hours contact be unreasonable? No. In certain industries and occupations, the employee's right of refusal will be limited because it would be unreasonable for an employee to refuse to monitor work-related communications.  It will also be reasonable for employers to make contact with 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.
  • What can an employer or employee do if they think the contact is unreasonable? Following any unsuccessful initial attempt to resolve the issue at a workplace level, either party can apply to the Fair Work Commission (FWC) to deal with the dispute and help reach a resolution. Parties can also apply for "stop" orders which will operate similarly to existing "stop bullying" or "stop harassment" orders.
    • Employers can apply for orders to stop the unreasonable refusal from the employee
    • Employees can apply to stop the unreasonable contact from the employer, or to stop the employer from taking certain action (e.g. disciplinary action) because of a belief that the employee's refusal was unreasonable
  • In each of these scenarios, the FWC must be satisfied that there is a risk of the behavior continuing and therefore, the right to apply to the FWC will be limited to current employees.
  • If the orders are breached, civil penalties will apply (being a fine of AUD $18,780).
  • What type of orders can the FWC make? The FWC has broad powers to make any order it considers appropriate (other than the payment of a pecuniary amount). Essentially, the FWC's order would require an employee to monitor read or respond to contact if it considers the employee's refusal unreasonable, or require an employer to not take disciplinary or other action against an employee because the FWC has determined that the employee's refusal is reasonable.  
  • Is the right to disconnect a "workplace right"? Yes. The provisions make it clear that the employee's right to refuse unreasonable contact from an employer or third party is a "workplace right", enabling access to general protections (adverse action) provisions. Adverse action taken in the context of the right to disconnect could include taking or threatening disciplinary action against the employee, dismissing an employee, obstructing an employee's access to that right, or treating an employee differently than other employees because they have reasonably refused out of hours contact.
  • Do these provisions apply to labour hire workers? Yes. These provisions apply broadly to all work-related contact or attempted contact. We anticipate that there will be some practical difficulties in labour hire providers monitoring compliance with these provisions where a worker is performing work for a third party company.  
  • How long do we have before it comes into effect? We don't know yet. Closing Loopholes 2 will now go before the House of Representatives for consideration (and may be subject to further changes). After that, we will wait on the Royal Assent. On the assumption it passes, and the current commencement provisions remain, it would come into effect 6 months from the date Royal Assent is received.
  • Anything else? A right to disconnect term will also be required in Modern Awards. The FWC will be required to facilitate variations to existing Modern Awards prior to commencement to include a right to disconnect term.


What should I do?

These changes continue the Labor government's push for an increasingly interventionist FWC. While the Senate managed to negotiate important limitations on the "right to disconnect", the FWC will have broad-ranging powers to step into employee-employer disputes and impose orders based on what the FWC considers to be reasonable working hours.

Get ahead of these changes by:

  • educating managers in your business about these changes (including about adverse action risks) and anticipate employee queries
  • ensure clear expectations for out of hours contact are set, including with customers, clients, suppliers or other third parties of your business
  • consider any existing policies that may be impacted, and may need to be reviewed or updated (e.g. social media usage, flexible work)
  • review and update contracts to make it clear that remuneration will include compensation for work completed after, or out of, hours. Different approaches will be required for Award-covered employees

As soon as we know more - we will loop you in.

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