The Right To Disconnect And Work-Life Balance Changes

In February 2024, the Federal Government introduced changes to the Fair Work Act which aimed to strengthen the work-life balance of Australians by providing employees with ‘The Right to Disconnect.’ In the following article, we will define the right to disconnect and outline what the right to disconnect provides employees as well as its limits. Further, we will highlight the expected changes to employment contracts because of the introduction of this right and the date these changes commence for various employers. Lastly, we will outline how disputes between employers and employees regarding this new right are expected to be resolved.

What is the right to disconnect?

The right to disconnect is a new right introduced by the Federal Government which allows for employees to refuse contact from their employer, customers, or any other work-related third parties outside of normal work hours. This means employees exercising this right can refuse to reply to or even monitor work communications outside of normal work hours.

An important stipulation of this right is that the exercise of this right must be reasonable in the circumstances, and what is considered “normal work hours” will need to be determined as per the employee’s contract as it is not standardised by the Government.

What is reasonable refusal?

The Federal Government did not standardise what is considered “reasonable refusal” under this new right. Instead, the Government provided a list of factors which can be considered on a case-by-case basis in disputes to assess whether the employee’s refusal to contact the complainant was unreasonable.

Some of the factors to be assessed in disputes are as follows:

• The reason contact was attempted and how contact was attempted to be made.
• How much the contact disrupted the employee, factoring in their personal circumstances.
• Any compensation received by the employee for being available/working outside of standard hours.
• The employee’s role, assessing the expectations of the employee and their level of responsibility.
• If the contact is mandated under federal or state laws, any refusal of contact will be deemed unreasonable.

The Federal Government stated that these are not the only factors which can be assessed when discussing unreasonable refusal. However, they guide parties in a dispute towards the type of factors which should be assessed when deciding whether refusal of contact by an employee was unreasonable.

Changes to employment awards

Employment awards are documents which outline the terms of an employment, such as hours the employee is expected to work, and the wage they will be paid among other terms.

By 26 August 2024 all employment awards will be required to include a term which stipulates the employees right to disconnect. TheFederal Government has not provided a standard term which can be applied to employment contracts, this is because the expectation and requirements of every industry will be different from the last, so the stipulations of a right to disconnect term will need to differ between companies and industries based on individual needs.

Commencement dates

The Federal Government is introducing this right in two separate stages based on the size of an employer. Non-small employers, or businesses with more than 15 employees will be expected to adhere to right to disconnect guidelines by 26 August 2024. Meanwhile, small employers with 15 or less employees will be expected to adhere to these changes by 26 August 2025.

Resolving Disputes

Disputes regarding the right to disconnect are expected to be firstly attempted to be resolved at the workplace level, this means using whichever channels the company has set up to resolve disputes between employees of a company.

However, if the channels established by a company are not sufficient to resolve the dispute, parties are able to use the Fair Work Commission to resolve disputes, as the Commission is able to make orders or send the dispute to ADR according to the circumstances of the dispute.

Examples of orders which could be made by the Fair Work Commission could include the employer not being able to contact the employee for unreasonable purposes, or the employee being unable to refuse reasonable contact. The Fair Work Ombudsman states that failure to comply with orders by the Fair Work Commission can result in monetary fines.

Conclusion

In the short term, the introduction of the right to disconnect establishes a lot of new expectations for employers. They are expected to learn what the right to disconnect entails and its limitations, tailor the right to suit the expectations of their industry and do so while not interfering with employees’ rights.

While these expectations for employers will carry into the long term, new expectations for employees will also be created in the long term as they will have to ensure they aren’t going outside their rights by refusing reasonable contact outside of work hours.

Both employers and employees looking to find out how the introduction of the Right to Disconnect will affect their industry, and who wish to seek legal advice to ensure they are compliant with these changes to the Fair Work Act can contact ABKJ Lawyers.