28 Mar 2024It’s nine o’clock at night and you are relaxing at home watching a movie before heading to bed. Suddenly the phone rings. It’s the boss calling to discuss a meeting to be held tomorrow at work. You sigh – wishing you could disconnect from your work at this late hour – but you take the call because you have concerns about your job if don’t.
Workers will have the right to disconnect out of hours
But change is imminent. Federal parliament has passed the Fair Work Legislation Amendment (Closing Loopholes) Act No. 2 (refer to part 8 for right to disconnect), which will come into operation on 26 August 2024. For small businesses it starts 12 months later to allow more time to make arrangements that suit the workplace.
Among other employment measures, the Act introduces the employee’s right to disconnect, meaning employees may refuse to monitor, read, or respond to employers or to work-related contact out of hours, unless this would be unreasonable. (Please see Closing loopholes bill: the right to disconnect and five other changes coming to Australian workplaces, The Guardian, 8 February 2024.)
The legislation outlines how employers and employees should interact outside working hours.
Contact is allowed, but employees can refuse to respond
It is important to stress the Act does not prohibit employers from contacting their employees about work matters, as long as the contact is not “unreasonable”, but the employee will be within their legal rights to refuse or fail to monitor or respond outside working hours.
This does not apply if the employee’s work requires them to be in contact with supervisors, such as emergency work, or if the employee is compensated for working outside their normal hours.
The principle is that workers are not paid to work 24 hours a day, so employers shouldn’t expect them to be available for work around the clock.
How is “unreasonable” employer contact determined?
Whether the employer’s contact is “unreasonable” can be determined by the reason for the contact, the method of contact (a text or email is less intrusive than a phone call), the level of disruption it causes, the nature of the employee’s role and responsibilities, and the employee’s circumstances, such as family responsibilities.
Concerns about work safety matters and patterns of behaviour could also be a reasonable reason for contacting a worker out of hours. It may be a concern the boss didn’t want to discuss in front of other workers. But it could be unreasonable if the contact is frequent or could have waited until work hours.
A message about shift changes or an unexpected task that needs to be done immediately would be considered to be a reasonable contact, as long as it doesn’t happen too often.
After hours contact from the workplace relating to defence, national security or police operations is regarded as reasonable.
As with other workplace rights, resolving disputes over the right to disconnect will be a matter for the Fair Work Commission if negotiations at the workplace fail. The Commission will issue guidelines about the right to disconnect before the law comes into force in August 2024.
Employers face steep civil penalties for breaches
Employers should get legal advice on what they can do under the new law, because those who breach stop orders from the Commission could face civil penalties of up to $18,780.
Technology has pressured many workers to be available 24 hours a day by answering work emails, phone calls, texts or dealing with their workload after paid hours, resulting in what’s called “availability creep”.
Ironically, the first group of employees to announce they will take advantage of the new right to disconnect are the Labor government’s own political staffers. (Please see Ministerial staff ready to fight for their right to disconnect, Sydney Morning Herald, 13 February 2024.)
The Opposition declared it will end the right to disconnect it if wins the next election. (Please see Coalition would overturn right-to-disconnect legislation, Peter Dutton says, The Guardian, 11 February 2024.)
Australia follows several European countries including France, Spain and Italy in giving workers the right to ignore the boss after they clock off. (Please see Should we have the right to disconnect, 13 September 2022.)
If an employer is in any doubt about what is reasonable, or how to deal with any other aspect of the changes, it’s best to get expert legal advice.
