Right to Disconnect laws – what it means, implications and how to prepare

You may have heard or read about the Greens’ new “Right to Disconnect” laws that have recently passed through Parliament.  There has been lots of chatter from both workers and employers about these changes, so we thought it might be useful to step through in simple terms, what these changes are, their potential implications, and what businesses might need to do to prepare.

What are the Right to Disconnect laws?

In Australia, workers’ rights are governed by the Fair Work Act 2009 (Cth) and the associated Regulations and various awards. Changes to the Fair Work Act were proposed by the Greens members of parliament in a bill called the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023. That bill passed through both houses of Parliament on 12 February 2024 and received Royal Assent on 26 February 2024.

These new laws are designed to prevent employers from contacting employees outside of normal work hours. This means that an employee can refuse to monitor, read or respond to contact (or attempted contact) from an employer or a third party about a work-related matter, outside of their usual working hours, unless the employee’s refusal is unreasonable.

What employers are impacted by these changes, and when do they take effect?

All businesses, who are employers within the meaning of the Fair Work Act, must comply with these new laws. For most employers, they will have 6 months to make any changes required to comply with these new laws, and the changes will start on 26 August 2024. Small business employers (with a turnover of less than $10 million and less than 15 employees) have an additional 12 months to prepare, so they have until 26 August 2025 before the changes affect them.

The details

The first thing to consider is what might be deemed ‘unreasonable’ when we are talking about an employee’s refusal to communicate outside of business hours. The relevant factors to be considered are:

• the reason for the contact
• how the contact is made
• the level of disruption caused by the contact
• compensation received by the employee for remaining available to perform work during the period or for working any additional hours outside of their ordinary hours
• the nature of the employee’s role and level of responsibility
• the employee’s personal circumstances (including family or caring responsibilities).

Note that where compensation is considered, it does not necessarily mean monetary compensation, consideration will also be given to extra time off, flexible working arrangements and other rewards.

If there is a dispute between an employer and an employee about these new laws, the parties must first engage in the normal workplace dispute resolution process to attempt to come to a resolution. If no resolution can be found, then the parties may apply to the Fair Work Commission to deal with the dispute and make orders such as Stop Orders. Such orders might include:

• an order which directs that an employee must stop refusing contact with the employer (i.e. they need to respond outside of their ordinary hours);
• an order that an employer not take disciplinary action, or cease any disciplinary action, against an employee for refusing contact from the employer;
• an order that directs an employer to cease attempting to make contact with the employee outside of their ordinary hours of work.

The President of the Fair Work Commission has issued a statement about the changes to the Fair Work Act, but given the changes will not take effect until August 2024, the Commission has indicated that it will require further time to publish a detailed statement about how they will approach these matters and determinations changes to modern awards.

What should your business do to prepare?

It is important that your business takes the steps to understand how these changes might impact on your current operations, including considering what processes might need to be introduced to ensure that you comply with the changes.

These steps may include:

• reviewing existing employment contracts or Enterprise Agreements to ensure compliance with the new laws
• preparing policies about the use of work technology outside of agreed working hours
• monitoring employees’ work activity outside of agreed working hours
• communicating and providing training to managers about the new laws and employees’ boundaries
• setting up a process to internally resolve any disputes that might arise about these changes
• communicating to all staff about the importance of scheduling emails to be delivered during working hours.

It is not yet clear how these changes will impact critical workers, or unexpected work that might arise in the case of emergencies. The focus seems to be on the reasonableness of the employee’s refusal to connect, rather than the reasonableness of the request of the employer.

For many professionals, a clause in their contracts that includes “reasonable overtime” should give the employer the ability to continue to make out of usual hours contact, when there is a need. But for other workers, specific terms may need to be included in any contracts to ensure compliance.

For those employees that fall under a Modern Award, these Awards will be updated to incorporate these new laws.

What next?

It remains to be seen how these laws will play out in practice here in Australia, but we are not the first to tread down this path. The right to disconnect already exists in many European and South American countries, so such working conditions are already in force elsewhere around the globe.

For now, it makes sense to prepare and plan for the impact of the new laws on the way you do business.

Get in touch

If your business will be impacted by these new laws and you would like some advice on the steps to comply, please get in contact with our Business & Commercial or Employment teams at 1800 730 842, or you can contact Lauren at lroberts@tgb.com.au.