Demystifying the 'Right to Disconnect'

In our highly connected world, it’s rare to leave work and not receive an email, phone call, or text message that re-opens the metaphorical work door. Starting from 26 August 2024, employees will have a new ‘Right-to-Disconnect’ outside of work hours. In the case of small businesses, they will have an additional year, i.e. until August 2025, to comply with the changes.

These changes are the latest amendments to Australia’s workplace laws, introduced as part of the Closing Loopholes No.2 Act 2024, which amends the Fair Work Act. This tranche of the ‘Closing Loopholes’ reforms will enable employees to refuse to monitor, read or respond to contact (or attempted contact) from their employer or a third party if it relates to their work and is outside their working hours. Simply put, the change will permit employees to ‘power down’ outside of work hours, subject to one big exception – unless it is unreasonable to do so. Unsurprisingly, this addition to the Fair Work Act has been the subject of heated debate. However, like most polarising public discussions, the reality and breadth of new rights are, perhaps, not as black-and-white as what our news feeds would have us believe. 

Last month, the Fair Work Commission released Draft Terms, which will serve as a model award clause for the incoming ‘Right-to-Disconnect.’  If adopted, the Draft Terms will become an enforceable award term that limits employers’ ability to contact employees outside of working hours. In particular, employers will be able to make contact for specific reasons, including:

1. if the employee is being paid a stand-by allowance, 

2. if the employer is notifying the employee they are required to attend or perform work, or 

3. if the contact is in accordance with the usual arrangements for such notification.

How the Right-to-Disconnect will operate in practice is still uncertain. However, a key consideration will be in striking a balance between what can be considered ‘reasonable’ and ‘unreasonable’ contact by employers. Reasonableness is one of the legal profession’s favourite terms — steeped in ambiguity, and rife with opportunities for legal challenge. The guardrails of what is deemed ‘reasonable’ and what is ‘unreasonable’ will likely be tested in the Fair Work Commission – and not long after the newly-minted Right-to-Disconnect comes into effect.

To avoid being named in a Right-to-Disconnect ‘test case’, employers and employees should consider establishing clear expectations and ensure that employees understand where their employers plan to draw the ‘reasonable’ line, i.e. when they think it is reasonable-to-connect outside of normal working hours. Like any relationship, communication, collaboration, and negotiation will be essential in navigating the work environment come 26 August.

Summary

The introduction of the Right-to-Disconnect marks a significant shift in Australia’s workplaces. Its aim is to empower employees – and enable them to disconnect from work outside of their designated hours. While the specifics of how this right will operate is far-from-certain, the Fair Work Commission’s Draft Terms provide some clarity. The real challenge will be for employers and employees to establish clear expectations, along with an understanding of what is ‘reasonable’ contact outside of the workplace or business hours. At Synergy Law, we anticipate that this new right can work in collaboration with the flexible employment arrangements introduced last year, fostering a balanced and productive work environment. This synergy will be crucial in making these new regulations work effectively for everyone involved.