The Second Closing Loopholes Bill passed Parliament on 12 February 2024 (see Right to disconnect, a right for concern for a summary). While on a conceptual level, explicitly enshrining a right to disconnect should result in a healthier and happier workforce, on a practical level, many employers may be left wondering what the new right for employees to disconnect from the workplace may mean for their organisation.
In summary, the amendments to the Fair Work Act 2009 (Cth) (FW Act) provide that employees may refuse to monitor, read or respond to contact from an employer or related third party outside of their working hours, unless such a refusal is considered ‘unreasonable’.
The immediate question that comes to mind is “what is reasonable?”
The question of reasonableness
While the legislation provides some guidance as to the factors that need to be considered, the question of reasonableness will ultimately be based on the facts of each individual case.
There are a number of key issues and complexities that employers will need to consider and navigate, such as (but not limited to):
- changes to the landscape of flexible working arrangements and working from home
- impacts to the way in which salaried staff work reasonable additional hours
- potential issues for clients and customers to reach out to employees outside of regular working hours
- potential issues in managing tasks that require collaboration across different teams and/or people in different time zones
- whether employers can contact staff to request updates on their condition or return to work while they are on sick leave, workers compensation or parental leave
- implementing policies that avoid disputes arising altogether and, should they arise, dealing with them before they evolve into a larger claim.
Disputes
In circumstances where disputes between employers and employees cannot be resolved internally, the Fair Work Commission (FWC) will have the power to deal with the matter up to and including issuing “stop” orders, presumably akin to the FWC’s stop bullying and stop sexual harassment powers. If an impasse of this nature arises, there may be significant difficulties in resolving disputes internally and reaching an agreement that deals with a breach of an employee’s right to disconnect. Given that the circumstances of contact outside normal working hours will be subject to the change, employers may face difficulties in reaching agreements on how to resolve these issues internally, making escalation to the FWC more likely.
Another consideration is that enshrining the right to disconnect in the FW Act in this manner creates a new workplace right for the purposes of the general protections provisions under the FW Act. With this in mind, if these matters are not carefully managed, employers may find themselves at the wrong end of a general protections claim. Additionally, while the FWC cannot issue civil penalties, if it makes a stop order and an employer is found to breach that order, it may result in enforcement proceedings in appropriate courts that may attract civil penalties.
Implications for employers
This is a new and evolving area, and we recommend that employers proactively obtain advice, and review policies, procedures and employment contracts to ensure that employment practices and inherent job requirements do not breach an employee’s right to disconnect.
