The Right to Disconnect Has Arrived

Technology is transforming the workplace, and as a result, employees can be contacted by their employer outside of the office and beyond work hours at the click of a button.

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In an attempt to legislate clear boundaries to govern this ‘24/7 accessibility’, the new Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) introduced the widely publicised right to disconnect.

Part 8 of the Fair Work Act now grants employees the right to refuse to monitor, read, or respond to contact from employers or related third parties (including clients) that occurs outside of working hours unless the employee’s refusal is unreasonable. The reasonableness of an employee’s refusal will be determined by reference to the reason for contact, how the contact was made, the level of disruption caused, compensation to the employee, the nature of their role and responsibility, and personal circumstances.

As this is new and uncharted territory, until this is tested through cases coming before the Fair Work Commission, there is no clear guidance available regarding this ‘reasonableness test’.

It is important to note that the right to disconnect became a workplace right on 26 August 2024. This means employers will be prevented from taking adverse action against any employee who exercises their right to disconnect, and any such adverse action that is taken may be subject to a general protections claim in the Fair Work jurisdiction.

Employers should consider the impact of this right to disconnect on their current operations and practices and put in place a policy that governs how they will manage their obligations and expectations of employees moving forward.

The policy should provide clarity on what contact is considered to be unreasonable for the business and outline the procedures for employees to exercise their right to disconnect. A policy will help to ensure consistency in decision-making processes and mitigate the risk of non-compliance with the new laws. Furthermore, it is crucial that managers receive adequate training regarding this change and its impact on the business.

If you require tailored legal advice about the right to disconnect or any issues impacting your workplace, contact our experienced employment law team to discuss your needs.