Right to disconnect, a right for concern?

The Government’s Second Closing Loopholes Bill has just formally passed parliament. In a move to secure support for the Bill through the Senate, the Federal Government agreed to additional amendments to the Bill including the introduction of a new entitlement, being the “Employee Right to Disconnect”.

The proposed amendment to the Fair Work Act 2009 (Cth) (Act) will add a new section, which provides that:

1. An employee may refuse to monitor, read or respond to contact or attempted contact from an employer outside of the employee’s working hours unless the refusal is unreasonable;
2. An employee may refuse to monitor, read or respond to contact or attempted contact by a third party if it relates to work, and is outside of the employee’s working hours unless the refusal is unreasonable;
3. As to whether the refusal is unreasonable, the following must be taken into account (note that this does not limit the matters that may be considered):
   • Reason for the contact or attempted contact;
   • How the contact or attempted contact is made and the level of disruption the contact or the attempted contact causes the employee;
   • The extent to which the employee is compensated:
     • (i) To remain available to perform work during the period they are contacted;
     • (ii) For working additional hours outside of the employee’s ordinary hours of work;
   • The nature of the employee’s role and level of responsibility;
   • The employee’s personal circumstances (including family or caring responsibilities);
4. This is a workplace right for the purpose of the general protections provisions;
5. An employee’s refusal to monitor, read or respond will be unreasonable if that contact or attempted contact is required under a law of the Commonwealth, a State or a Territory; and
6. Should the employee be covered by an enterprise agreement and that agreement provides for a favourable right to disconnect clause, the term from the agreement continues to apply.

The Bill also adds a further section to the Act confirming that if there is a dispute between the parties, they must attempt to resolve the dispute at the workplace level by way of internal discussions between the parties.

Should the parties be unable to resolve the dispute internally, then either party can make an application to the Fair Work Commission to either make an order to stop refusing contact or to stop taking certain actions or otherwise deal with the dispute.

The Fair Work Commission will have the power to make an order it considers appropriate (save for a payment of a pecuniary amount), and this can include an order:

1. That the employee ceases unreasonably refusing to monitor, read or respond to contact or attempted contact;
2. That the employer is prevented from taking action against the employee (including disciplinary action) because of the employer’s belief that the employee’s refusal was unreasonable; and
3. That the employer is to cease requiring that the employee monitor, read or respond to contact or attempted contact.

Breaching a Fair Work Commission order will be a civil remedy provision, attracting penalties.

While there are of course benefits to ensuring that employees have a proper opportunity to disconnect from work, these changes present a fresh set of challenges for employers, with the potential for risks and claims.