Do not disturb: Australian employers and the right to disconnect

With the recent passage of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (“Bill”) through Parliament, Australia has followed a number of other advanced economies in introducing new protections for employees who are contacted by their employer outside of ordinary work hours.

These new protections are designed to empower employees to set boundaries between their work and personal lives amidst the rise of an increasingly “always on” culture in many Australian workplaces.

What is the right to disconnect?

In short, the right to disconnect is the right of an employee to ignore attempts by their employer or a third party (such as a client), to contact them outside of ordinary working hours. Significantly, however, the right is only taken to be properly exercised where it is reasonable for the employee to have done so in all the circumstances.

The Bill does not provide an exhaustive list of the factors that will be determinative of whether a refusal to engage with contact or attempted work-related contact outside of ordinary working hours is reasonable. It does, however, provide that the following factors must be taken into account in determining this:

1. the reason for the contact or attempted contact;
2. how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
   
3. the extent to which the employee is compensated:
   
   1. to remain available to perform work during the period in which the contact or attempted contact is made; or
      
   2. for working additional hours outside of the employee’s ordinary hours of work;
4. the nature of the employee’s role and level of responsibility; and
   
5. the employee’s personal circumstances (including any applicable family or caring responsibilities).

Key points for employers to know

1. A grace period applies. The right to disconnect will, for non-small businesses (being businesses with 15 or more employees), not take effect until 6 months after the Bill receives Royal Assent (or earlier by proclamation).
2. Subject to reasonableness - Contrary to some suggestions in the media, the right to disconnect does not oblige employers to cease any contact with employees outside of working hours. Instead, it gives employees a right not to engage with attempts at contact outside of their working hours where it is reasonable for them to do so.
3. Third parties – the Bill covers contact from both employers and third parties. This means that an employee exercising the right to disconnect can, theoretically, exercise the right in respect of client/customer or other third party attempts to contact them.
4. Monetary sanctions do not generally apply – In the event of a dispute about whether a refusal to work is reasonable or not, the Bill provides that the parties should first attempt to resolve the matter at the workplace level and if the dispute cannot be resolved informally, a party can apply to the Fair Work Commission to resolve the dispute.

 A party would only be exposed to the threat of penalties if they did not comply with an order made by the Commission in arbitrating a dispute.

What should employers be doing to prepare?

It is not yet entirely clear how the right to disconnect will be considered in different working contexts, particularly in situations where employees are part of a global team working across different time zones.

Litigation in this space, including in the context of general protections claims (where the reasonableness of the purported exercise of the right by an employee will likely be a key issue in dispute), will no doubt shed light on that in due course.

In the meantime, employers should now consider taking the following steps:

1. Reviewing current practices to ascertain the extent to which employees are currently being asked to work outside of their usual hours and how these practices could be better aligned with the introduction of the new right to disconnect. 
2. Educating managers on the new right to disconnect to increase awareness and ensure that a consistent approach is taken in how employees are communicated with outside of ordinary working hours.
3. Developing a risk profile by analysing which staff have an increased likelihood of being able to lawfully rely on the right to disconnect (e.g. due to being junior or having significant family or caring responsibilities).
4. Initiating a dialogue with employees about your business’ operational requirements whilst still recognising the importance of a healthy work life balance. This is a particularly important step that should be taken by businesses that operate across multiple time-zones or who regularly need to meet challenging operational deadlines.