Employees Right to Disconnect Commences 26 August 2024

From the 26 August 2024 the Fair Work Act 2009 (Cth) will be amended to include a right for employees to disconnect from work, this right will also be incorporated into Awards. For businesses of less than 15 the right to disconnect will come into effect from 26 August 2025.

A small business employer is an employer with fewer than a total of 15 employees at a particular time. This is the total number of individuals which can include those who are part time, full time and regular and systematic casuals. If at a particular time an employer has 15 or more employees, they are no longer a small business employer.

What is the Right to Disconnect?

Employees now have the right to refuse to monitor, read, or respond to any work-related contact or attempted contact outside of their working hours, provided this refusal is not unreasonable. This right extends to contact from third parties if it pertains to their work and is outside of the employee’s working hours.

Determining Unreasonableness

The reasonableness of an employee’s refusal to engage with work-related contact or attempted contact outside of working hours will be assessed based on:

• The reason for the contact or attempted contact.
• The method and level of disruption caused by the contact or attempted contact.
• The extent to which the employee is compensated for being available outside of working hours.
• The employee’s personal circumstances, including family or caregiving responsibilities.

Dispute Resolution

Disputes may arise if an employer believes an employee’s refusal to be unreasonable, and the employee believes it to be reasonable. Initially, disputes should be resolved at the workplace level. If a resolution cannot be reached, either party may apply to the Fair Work Commission, which can make orders or otherwise address the dispute. Both employers and employees can appoint a representative or an industrial association for support during the dispute.

Next Steps for Employers

Employers should:

• Review Enterprise Agreements and Awards to check for applicable on-call or call-back allowances for employee contact outside of working hours.
• Update employment contracts and position descriptions to clarify any expectations regarding out-of-hours contact.
• Ensure managers are aware of the limitations on contacting employees outside of work hours.

Need More?

The Workplace Relations and Legal Team is available to help you and your business understand and adapt to these changes. They can assist in reviewing your contracts and employment documents to ensure compliance with the Act and provide clear communication to employees about out-of-hours contact. For assistance or more information, please contact the Workplace Relations and Legal Team at 02 6175 5900.