Right to Disconnect – Employee’s Right to Refuse Contact From Employer

As we enter into a post-pandemic and highly digitalized era, employees have become more familiar with the experience of working overtime, receiving calls and doing work at home outside of work hours. The 2024 reform to the Fair Work Act 2009 now provides employees with a Right to Disconnect, to refuse contact from anyone regarding work-related matters after work hours, which reshapes the power dynamic between employer and employees, and promotes employees’ work-life balance.

Right to disconnect

In the recent legislative reform of the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024, the Fair Work Commission made changes to parts of the Fair Work Act 2009 on legislative principles relating to employment. One of the major changes is the introduction to the ‘Right to Disconnect’.

Under these reforms employees have the right to refuse to monitor, read or respond to contact, or attempted contact from their employer or from a third party on a work-related matter, unless the refusal is unreasonable.

• The forms of contact could include communication channels such as phone calls, emails, texts, social media and other messaging services.
• Third party could include clients, staff from other businesses, or members of the public.

This right applies to all employees in the national workplace relations system, also known as the Fair Work system. In Queensland, employees in the private sector are covered, which includes private businesses of all sizes managed by individuals or by independent companies.

The Right to Disconnect has also been inserted into all modern awards and may be included in enterprise agreements and other registered agreements.

Unreasonable Refusal

An employee can exercise their right to disconnect unless their refusal is unreasonable. To determine whether the refusal is unreasonable, some factors must be taken into consideration. These are:

• The reason for the contact or attempted contact;
• How the contact is made and how disruptive it is to the employee;
• How much the employee is compensated or paid extra for;
• Being available to perform work during the time when they are contacted, or
• Working additional hours outside their ordinary hours of work;
• The nature of the employee’s role and their level of responsibility in the business; and
• The employee’s personal circumstances, including family or caring responsibilities.

It is important to note that a refusal will be unreasonable if the employee is required to read, monitor or respond to the contact by law. For example, the employee is must accept the contact by their employer when the employee is paid an on-call allowance and the contact is to give notice of them to work.

Date of Commencement

There is a staggered commencement of these reforms as follows:

• 26 August 2024 for non-small business employers and their employees.
  • Non-small business employer means an employer with 15 or more employees at a particular time, including the number of employees of associated entities of the employer as well as casual employees that are engaged on a regular and systematic basis.
• 26 August 2025 for small business employers and their employees.
  • Small business means an employer with fewer than 15 people, including full time, part-time, and regular casual workers.

Disputes

If disputes regarding the right to disconnect arise, the employer and the employee must first attempt to resolve it in the workplace. This includes open communication and discussions addressing out-of-hours contact, the time of contact, the forms of contact, compensation, etc.

If the dispute cannot be resolved at the workplace level, the employee can then apply to the Fair Work Commission to resolve the dispute. Actions that the Fair Work Commission can take include:

• Making an order to stop the employee from continuing to unreasonably refuse contact;
• Making an order to stop the employer from continuing to require the employee to accept contact;
• Making an order to stop the employer from taking disciplinary or other actions against the employee for refusing to accept contact, on the basis that the employee’s refusal is reasonable; or
• Helping resolve the dispute in another way as the Fair Work Commission considers appropriate.

Additionally, if the employee feels like you are adversely affected because of your right to disconnect, such as being fired, demoted, or disciplined, they can also apply to the Fair Work Commission to resolve it as a general protections dispute.

Key Takeaway

The introduction of the Right to Disconnect places the control of the employees’ after-hour in their own hands by giving them the right to refuse work-related contact.

The requirement of considering multiple contextual factors ensures a fair evaluation of an exercise of this right, as well as promotes compensation for work conducted after usual work hours.

The different commencement dates allow for businesses of different sizes to adopt this at a reasonable pace.

Ramsden Lawyers – How Can We Help With Your Right to Disconnect

If you are seeking legal assistance on your Right to Disconnect, including inquiries about your rights and potential disputes, applying to the Fair Work Commission, or responding to an application made against you, Ramsden Lawyers are here to assist you. We are happy to arrange an obligation-free initial consultation to assist you in navigating the procedures set out under the relevant legislation for your circumstances. Please do not hesitate to contact us.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.