The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 has passed Parliament and will grant employees the right to disconnect after hours.
Overview of the laws
All Australian employees will have the right to refuse to monitor, read or respond to contact, or attempted contact, from their employer or a third party (for example customers or suppliers) outside of the employee’s working hours, unless their refusal is unreasonable. The right will apply to emails, texts, calls, and messages on platforms such as Slack, MS Teams and WeChat.
There is a non-exhaustive list of factors to consider whether an employee’s refusal is unreasonable which include:
- the reason for the contact or attempted contact;
- how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
- the extent to which the employee is compensated to remain available or to work additional hours;
- the nature of the employee’s role and their level of responsibility;
- the employee’s personal circumstances (including family or caring responsibilities).
The laws will come into effect six months after royal ascent and will only apply to small businesses a further 12 months after that.
The right to disconnect is a workplace right for the purposes of the general protections provisions in the Fair Work Act, which means employers are prohibited from taking adverse action against employees because they exercise the right to disconnect.
If a dispute arises about these issues, either party can ask the Fair Work Commission to issue “stop orders” against the other party. For example, an employer might be ordered to stop unreasonably contacting staff, but an employee can also be offered to stop unreasonably refusing to engage with their employer.
Once a FWC stop order has been made, a party who fails to comply with it faces the risk of civil penalties. Modern Awards will be amended to include the right to disconnect.
Practical consideration
One criticism of these amendments is that they legislate common sense and introduce additional red tape where employers had already come to grips with the issue through balanced workplace practices and polices. This is particularly the case given the rapid recent uptake of hybrid and flexible working arrangements and various communications technologies.
Existing formal and informal methods to deal with out-of-hours contact will need to be reviewed and updated where necessary to be compliant with these laws. The reasonable expectations of employers, given the demands of their business and relevant roles, will need to be discussed with employees where there is an expectation that they stay connected in some capacity.
Employers will need to be able to confidently justify these decisions to the Fair Work Commission.
There is an added challenge for businesses who do business across time zones and internationally and where employees regularly deal with stakeholders on different schedules.
We anticipate that this right could lead to arguments of unfair treatment where employees who disconnect miss out compared to others who stay connected, especially where others are seen to be rewarded with favourable treatment, higher pay and promotions. The onus of proof will be on employers to show that this was not the case.
Webinar
Our Melbourne office recently hosted the Closing Loopholes Act Webinar – What you need to know!
Video – https://youtu.be/U2ZnR1R-RFE
Slides – https://www.hunthunt.com.au/wp-content/uploads/2024/02/Closing-Loopholes-Presentation.pdf
