Without question, the new employee 'right to disconnect' (RTD) is the most controversial aspect of the Federal Government's recent reforms to workplace laws - Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Loopholes No 2).

On one hand, RTD merely restates limitations that already exist in employment relationships – the right of an employee to resist a direction that is not lawful and reasonable, including to work unreasonable hours. On the other hand, the RTD creates and encourages new ways of enforcing that right.

Like the ubiquitous set of steak knives thrown in as a consolation prize on TV quiz shows, RTD surfaced as a last-minute deal between the Labor Government and the Greens. When Labor first released its extensive IR reform program in September 2023 under the 'Closing the Loopholes' banner – dealing with casuals, contractors, labour hire, wage theft, the gig economy, and union rights – RTD did not rate a mention. But with the passing of Loopholes No 2, RTD has become an unexpected new feature of employee rights under the Fair Work Act 2009 (FW Act).

Momentum for RTD rights came from the workplace changes caused by the COVID period – shifting work from office to home, increased flexibility in other respects, and the reach of technology into workers' lives through mobile devices and online communications.

As the working world has adjusted to post-pandemic life, questions have arisen about whether work demands have become too invasive in private lives, homes and families – adversely impacting on health and wellbeing. A corresponding economic argument has been that workers have not been properly compensated for excessive work hours.  

Australia's exposure to RTD

France was the first country to introduce RTD in 2017, requiring employers to have policies to provide this option. In Australia, RTD began showing up in enterprise agreements from about 2021 – notably for Victoria Police, Queensland teachers and some large banks. The Greens introduced a Bill to implement RTD in March 2023.

The Right to Disconnect

RTD is now contained in section 333M of the FW Act which will commence on 26 August 2024¹.  In summary:

• employees can refuse to monitor or respond to contact from their employer or clients (third parties) outside the employee's working hours;
• however, the refusal cannot be unreasonable;
• there is a non-exhaustive list of factors that can be taken into account for determining whether the refusal is unreasonable – including:
  o   the reason for the contact;
  o   how the contact is made and the level of disruption it causes the employee;
  o   the extent to which the employee is compensated;
  o   the nature of the employee’s role and the employee’s level of responsibility; and
  o   the employee’s personal circumstances (including family or caring responsibilities);
• RTD will be inserted into modern awards;
• an employee can make a general protections claim on the basis that they are or were the subject of adverse action as a result of their exercise of the RTD; and
• disputes about RTD will be dealt with by the FWC.

Notable aspects of RTD

These new provisions:

• will apply to all Australian employers, regardless of size²  – in contrast to RTD laws such as France (minimum 50 employees) or Ontario, Canada (25 employees);
• grant an express legal right to all private sector employees, not just those covered by a collective agreement, policy or Code of Conduct – in contrast to the 'softer' European approach;
• provide for a dispute resolution process through the Fair Work Commission (FWC), which can impose an outcome on parties through orders;
• create direct financial penalties for breach of any FWC orders; and
• make RTD a protected 'workplace right', opening a gateway for an explosion of legal claims under the general protections provisions of the FW Act – which also carry penalties.    

Actions and recommendations

To prepare for the commencement of RTD, employers should consider their current practices and work expectations, whether in practice their employees are working unreasonable hours, and whether communication around these issues is adequate and effective.

In particular, we recommend that employers consider:

• how is work currently performed – what are typical working hours – both in the employer's premises and at home – and whether there have been problems or complaints in the past;
• whether working hours and employee duties are defined clearly enough in contracts – particularly where there are unique aspects of a job that require work or contact outside 'ordinary hours';
• educating and training employees and managers about expectations;
• assessing current communication about expectations, and whether these are adequate; and
• developing guidelines about appropriate contact and communications between employees and management.

The particular risks and practical issues that arise for each employer will be specific to their workplace, operations and industry.

We can assist employers to identify areas of risk in their current practices, and advise on how to reduce this risk, as well as assist employers to work through the related practical issues. Please contact our Employment, Workplace Relations and Safety team for assistance.

‍Authors

Mark Branagan | Partner | +61 3 8080 3638 | mbranagan@tglaw.com.au

Alexandra Smith | Lawyer

Footnotes

¹ There is a delayed commencement date for small business employers. For employers with fewer than 15 employees, the RTD legislation will take effect on 26 February 2025.

² Note the delayed small business introduction as above.

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