Navigating Changes in Employment Law - Part 2: Right to Disconnect

16 August 2024

Among other key amendments introduced by the Fair Work Amendment (Closing Loopholes No. 2) Act 2024 (the Amending Act), (including the amendments to casual employment discussed in Part 1 of our “Navigating Changes in Employment Law” series), the Amending Act has introduced a new “right to disconnect” for Australian employees. 

The new provisions relating to the right to disconnect will take effect from 26 August 2024 (26 August 2025 for small business employers).

What is the new “right to disconnect” under the Fair Work Act?

Employees will have the right to refuse to monitor, read or respond to contact (or attempted contact) from their employer or work-related third parties outside of designated working hours.

However, the right to disconnect is not absolute and must not be “unreasonable”.

The reasonableness of a refusal will be determined based on a range of factors, including the purpose and urgency of the communication, the method and potential disruption caused by the contact, the extent to which the employee is compensated for out-of-hours availability, the nature of the employee's role and level of responsibility and the employee's personal circumstances.  Refusal will be considered unreasonable if the contact is mandated by other legal requirements, including, for example, if an employee is paid an on-call allowance to remain available for work outside of their ordinary hours of work.

Importantly, the “right to disconnect” will be a “workplace right” under Part 3-1 of the Fair Work Act 2009 (Cth), meaning that an employer will be prohibited from taking adverse action (including, for example, taking disciplinary action) against an employee for exercising or proposing to exercise their right to disconnect.

Variations to modern awards

From 26 August 2024, the “right to disconnect” will be incorporated into all modern awards. 

The Fair Work Commission (the Commission) has released a draft model clause, which, among other things:

• prohibits employers from “directly or indirectly prevent an employee from exercising their right to disconnect under the Act”; and

• clarifies how this right interacts with existing award provisions, including where the award contains a standby allowance clause or equivalent, a provision allowing for an emergency roster change, and a provision relating to recall to work.

The Commission’s final determinations varying modern awards will be published by 23 August 2024.

Key takeaways

To align with the new legislative and award requirements, employers are advised to take proactive measures in preparation for the upcoming workplace entitlement. These include:

1. reviewing and updating existing employment contracts and policies or implementing new ones to clearly define expectations regarding out-of-hours communication and workplace practices; and

2. providing training to managers to ensure full comprehension of and compliance with the new legislative and award requirements.

For guidance tailored to your organisation’s specific circumstances or for further information, please contact our office.

Disclaimer: This article serves as a general guide only and does not constitute legal advice. The information is current as of the publication date but may be subject to future legislative changes.