The new workplace right – the right to disconnect, commenced for the vast majority of employees today, 26 August 2024. Employees of small businesses will have the same workplace right from 26 August 2025.
All modern Awards have been amended to include a clause on the right to disconnect.
It is an employee workplace right which protects employees who refuse to monitor, read or respond to contact or attempted contact outside their working hours, unless their refusal is unreasonable. Importantly, the workplace right extends not just to the employer seeking to make contact, but also to another person, such as a client or customer, where the contact is work related.
Employees can exercise the workplace right, provided it is not unreasonable in the circumstances for them to do so. The following matters will be relevant to determining if a refusal is unreasonable or not:
Other matters relevant to the particular circumstances may also be considered.
Employers and employees must first try to resolve any dispute about the right to disconnect themselves. However, if this is not possible, either the employer or the employee can ask the Fair Work Commission for assistance.
This new workplace right will be treated the same as all other existing workplace rights. An eligible employee who believes that they have been subject to adverse action (for example disciplined or dismissed) because they reasonably exercised the workplace right to disconnect, can make a General Protections application to the Fair Work Commission. If the Fair Work Commission cannot resolve the issue the matter would normally then be pursued in the Federal Court.
In short, no this is not what the new workplace right means. An employer can still make or attempt to make contact with an employee, however if this occurs and the employees reasonably elects not to engage with such communication, an employer cannot take any adverse action against the employee for deciding to exercise their workplace right to disengage from the workplace outside of their usual working hours.
We recommend that employers critically evaluate if communicating with employees outside of their normal working hours is, in fact necessary and if so, consult with the impacted employees about how, when and why this might occur.
Some communications occur outside of working hours, for example at the convenience of the author of the communication, or from a different time zone in a global business, which genuinely do not require an employee to read or respond to such communication until the employees next workday. Ideally, employers will be transparent about this and will ensure that employees understand the expectations when such communications appear on their devices outside of their usual working hours, that being, that there is no expectation the employee will engage with the type of communication until they are next at work.
Employers should also be transparent about the types of communications which might occur outside of the employee’s usual working hours that the employer would expect the employee to reasonably monitor, read and/or respond to. Employers should be clear with employees where monitoring, reading and/or responding to such communication is part of their role and either covered in their remuneration or would attract an additional payment if it were to eventuate. Many senior employees are paid a salary in contemplation of them being available outside of usual working hours and this will be an important consideration in determining if an employee’s response to such communication is reasonable or unreasonable.
The Fair Work Commission will monitor the implementation of this new workplace right and will in the future provide guidelines to assist employers and employees. It is estimated that such guidelines will be at least 12 months away to enable the Fair Work Commission an opportunity to monitor the workplace right in practice and to identify if there are any barriers to the workplace right operating as intended.
