The Right to Disconnect amendments introduce limitations on workplace communications outside of employees’ ordinary hours. The amendments received Royal Assent on 27 February 2024, providing employers with just six (6) months to review their policies and internal processes to ensure compliance with the new laws.
Why was it introduced?
In a move set to redefine work-life balance, the federal government has passed legislation granting employees the "Right to Disconnect" from their job outside of working hours. These changes come after concerns employees are expected to work outside of office hours. The changes have been introduced to combat the increased rate of psychosocial injury seen post-Covid where workplaces are still transitioning from a full time work from home arrangement where the lines between being at work and being at home have become blurred for many.
What is it?
On 8 February 2024, the Senate passed the Fair Work Amendment (Right to Disconnect) Bill 2023 which amends the Fair Work Act 2009. The Bill received Royal Assent on 27 February 2024.
This means that in six (6) months’ time, employees are empowered with the right to disconnect outside of regular work hours. This right means that they are not required to respond to any outside hours’ communications from their employer or third parties, including clients. There are exceptions to this rule such as reasonable out of hours communication including emergencies and welfare concerns or where the employee is receiving an availability allowance.
What are the changes?
The changes mandate that employers are unable to take punitive action an employee if they refuse to take work calls or answer work emails outside of their usual working hours unless the refusal is unreasonable. Whether the refusal is unreasonable is determined by a variety of factors including:
The purpose for contact;
How the contact is being made
The level of disruption the contact causes the employee;
The extent to which the employee is compensated:
To remain available to perform work during the period in which the contact is made; or
For working additional hours outside the employee’s ordinary hours of work;
The nature of the employee's role and level of responsibility; and
The employee’s personal circumstances, including family or caring responsibilities.
Contact that is made during an emergency or to change the conditions of the employee’s work (including location or hours) will be considered reasonable.
Considerations for Employers
The application of the right to disconnect has not yet been tested in Australia, but commentary suggests that it won’t take long post-August for cases to come before the Fair Work Commission. As employers brace for this change to their practice, there are some practical steps that should be considered now:
Does your workplace require after-hours contact? If so, is there provision for this in your employment agreements?
Are your employees remunerated generously with the view that after-hours contact is part of their role? If so, you may consider allocating a portion of salaries to an availability allowance to retain this expectation.
Do your HR policies cover the right to disconnect and what the expectations in your workplace are for after-hours contact?
The right to disconnect has been introduced amidst a raft of changes to the employment law landscape. We urge you to get in touch today to assess how these changes affect you personally, and to engage with our experts in ensuring your agreements, HR policies, and internal procedures are compliant. Please contact our Employment Law team on (02) 4929 2000 or email us at office@jenkinslegal.com.au.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
Co-authored by Larissa Barwell & Margherite Walsh