Navigating the right to disconnect: everything employers need to know

The Fair Work Amendment (Right to Disconnect) Bill 2023 (Bill) introduces a transformative shift in Australian employment law, empowering employees with the right to disengage from work communications outside of their regular working hours. This legislative change, effective from 26 August 2024, is pivotal for employers to understand and prepare for, ensuring compliance while fostering a balanced work environment.

Here, we explain this new legislative change, and its impacts on businesses, and share what employers need to know.

Unpacking the right to disconnect

The right to disconnect is a legislative initiative to address the blurred lines between work and personal life in an increasingly connected world. Originating from growing concerns about work-life balance and the impact of constant connectivity on mental health, the right to disconnect movement has gained traction internationally. Countries like France and Spain have already implemented similar laws to protect employees from work-related communications outside regular hours.

In Australia, the right to disconnect has been formalised through this Bill, which amends the Fair Work Act 2009 (Cth) (FW Act). This amendment represents a significant step towards enhancing employee well-being by legally recognising their right to disengage from work-related communications beyond their designated working hours.

Key changes and effects

The right to disconnect legislation grants employees the legal entitlement to refuse to monitor, read, or respond to work-related communications outside their designated working hours. This change aims to mitigate the risk of burnout and promote a healthier work-life balance.

Without limiting the matters that may be considered in determining whether a refusal is unreasonable, the following must be considered:

• The reason for the contact or attempted contact (it is likely to be an unreasonable refusal of an employee to refuse to respond to contact if the contact relates to a critical issue, an emergency or relating to staff welfare).
• How the contact or attempted contact is made, and the level of disruption the contact or attempted contact causes the employee (an email or text message is less likely to be disruptive than a phone call).
• The extent to which the employee is compensated (this also considers any non-monetary compensation afforded to the employee):
  • To remain available to perform work during the period in which the contact is made; or
  • For working additional hours outside of the employee’s ordinary hours of work.
• The nature of the employee’s role and the employee’s level of responsibility (if the employee is more senior or their role is critical, it may be easier to argue that the employee’s refusal was unreasonable).
• The employee’s personal circumstances (including family or caring responsibilities).

Exceptions and considerations

The right is not absolute. Exceptions are permitted if the refusal is deemed unreasonable, considering factors such as the urgency of the communication, the potential disruption caused, compensation for additional work, and the employee’s role and personal circumstances.

Countdown to compliance: what employers need to do and when

• Effective date: the right to disconnect will officially take effect on 26 August 2024. This timeline allows for a period of adjustment before the law is enforced, providing employers with the necessary time to align their practices with the new regulations.
• Extended compliance period for small businesses: small businesses, defined as those with fewer than 15 employees, are granted an additional 12 months to comply with the new regulations. This phased implementation provides smaller enterprises with extra time to adapt to the requirements and implement necessary changes. The new law will come into effect for small businesses on 26 August 2025.

Business as unusual: adapting to the new normal

1. Policy and contract adjustments

Employers must revise their communication policies to accommodate the right to disconnect. This includes setting clear guidelines on acceptable out-of-hours contact and ensuring these expectations are communicated effectively to all employees.

Updating employment contracts to reflect these new rights is also essential. Contracts may need to clarify provisions related to employee availability and compensation for work performed outside regular hours.

2. Training and compliance

Managers and HR personnel will need comprehensive training to understand and enforce the new regulations effectively. Additionally, employers should educate employees about their rights under the new law and the procedures for addressing any disputes that may arise.

3. Dispute resolution

The legislation outlines a framework for resolving disputes related to unreasonable refusals. Employers should be prepared to address such issues through internal discussions and, if necessary, seek resolution through the Fair Work Commission (FWC).

4. Adverse action

Employers must be aware that they will be prohibited from engaging in adverse action against their employee (i.e., commencing disciplinary action or termination of an employee’s employment) because they’ve refused to respond to work-related contact out of hours. This is because the right to disconnect is now included as a workplace right within the general protections provisions of the FW Act.

The bottom line

The introduction of the right to disconnect law represents a crucial advancement in promoting a healthy work-life balance. By proactively updating policies, revising contracts, and providing necessary training, employers can navigate these changes smoothly, ensuring compliance while creating a more balanced and respectful work environment.

More changes are coming: what’s on the horizon?

The passing of both Closing Loopholes Bills has continued to deliver on the Federal Government’s promise to overhaul Australia’s industrial relations framework. As 2024 continues, we will shortly see the remaining changes from the second Closing Loopholes Bill come into effect, including:

1. Changes to the definition of and conversion process for casual employees to permanent employment;
2. Changes to ‘employee-like’ work in the gig economy; and
3. Changes to the definition of employment.

Once these upcoming changes have been enacted, we will provide a further in-depth analysis of what they entail and their implications.

How can Citation HR help?

It’s easy to see how continuously changing legislation can quickly become overwhelming for even the most experienced HR professionals, and with no grey area when it comes to compliance, that’s where having experts in your corner can make all the difference. Citation HR’s industry-leading HR Software is backed by award-winning employment law experts giving your business complete peace of mind.

Whether you have an established HR function or no HR team, Citation HR’s effective HR support can help your business stay on the right side of the law. With access to unlimited, untimed, and expert advice, staffed by highly qualified professionals to answer your questions 24/7, 365 days a year, you’ll be glad you have Citation HR by your side.

If any of the information in this article has raised questions about the right to disconnect or other upcoming legislative changes, please reach out to our workplace relations experts via our 24/7 HR Advice Line.

About our author

Tasha Najmudeen is a Workplace Relations Consultant at Citation Group. She has an interest in all things legislation and ER/IR related and regularly provides advice on workplace matters to find solutions for clients.