31 JulUnderstanding the ‘right to disconnect’
This article outlines the new “right to disconnect” employee protections under the Fair Work Act. It is the first in a series of articles focusing on the ‘Closing Loopholes’ workplace laws, which apply to all national system employers, including those in early childhood education and care.
From 26 August 2024 for non-small business employers, and 26 August 2025 for small business employers, a new ‘right to disconnect’ outside of work hours will apply to eligible employees. An eligible employee can refuse to monitor, read or respond to contact from an employer or a third party unless that refusal is unreasonable.
The right also covers attempted contact outside of an employee’s working hours.
When determining whether an employee’s refusal is unreasonable, considerations must include:
- the reason for the contact
- whether the employee is compensated or paid extra for:
- being available to be contacted to perform work within a specific period, or
- working additional hours outside their ordinary hours of work
- the nature of the employee’s role and level of responsibility
- the employee’s personal circumstances, including family or caring responsibilities.
The right to disconnect will also be a workplace right under general protection laws. These laws are protected rights all employees receive under the Fair Work Act.
What this means for employers?
This change focuses more on the employee’s right to not respond, rather than an employer not contacting an employee.
Reasonable contact (such as asking a casual employee if they can work a shift after hours) is lawful and reasonable for the employer to perform.
Contact however, may be deemed unreasonable if it requires the employee to regularly perform work or respond to emails (for example, emails to families), outside of their working hours without additional salary compensation.
Employers and committees may consider amending employment documentation to address the right to disconnect, specifically items such as contracts of employment, position descriptions and policies.
For more information visit Right to disconnect – Fair Work Ombudsman
