This article looks at the new Fair Work Amendment Bill that deals with the employee rights to disconnect.
Fair Work Amendment Bill 2024
Since 26 August 2024, new amendments to the Fair Work Act 2009 (Cth) will be introduced to change employers’ approach to contacting employees outside of scheduled work hours. The approved Bill “Right to Disconnect” ensures that employees are permitted to refuse any work-related contact when the requests are made outside of work hours. Recent findings suggest that many employees are working additional unpaid hours of work, averaging an estimated 5.4 hours a week, including the need to monitor, read or respond to work-related communications, such as emails. The purpose of the new bill is to ensure that employees feel comfortable to disconnect outside of the appropriate work hours.
Unreasonable refusal
The conditions of an employee’s right to refuse the work will vary for many reasons. To understand what constitutes ‘unreasonable refusal,’ you may consider:
1. The reason for the contact or attempted contact;
2. How the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
3. The extent to which the employee is compensated:
a. to remain available to perform work during the period in which contact or attempted contact is made; or
b. for working additional hours outside of the employee’s ordinary hours of work;
4. The nature of the employee’s role and their level of responsibility;
5. The employee’s personal circumstances (including family or caring responsibilities).
Workplace right
The new legal right is also a new workplace right, within the General Protections of the Fair Work Act. The new section prohibits employers, or their representatives, from taking adverse action against the employee exercising their right not to respond to communications from their employer or third party outside of their ordinary working hours.
Overview of the ‘right to disconnect’
The Fair Work Act 2009 (Cth) now includes the legal right for employees to refuse to monitor, read, respond to contact or attempted contact from their employer outside of their working hours unless the refusal is unreasonable.
The approved Bill encourages employees to set boundaries and expectations with their employer, allowing them to “switch off” outside work hours. This does not mean that the employer is prevented from contacting the employee where, in some circumstances, it is reasonable for an employer to contact an employee. This includes phone calls, emails, texts, MS Teams messages and any other contact by an employer after hours that is not reasonable; further extending to any contact or attempted contact from third parties outside of the employee’s working hours that relates to work matters.
Modern Awards and EBA’s
Modern Awards will also include the right to disconnect. If an employee is provided with an enterprise agreement with a more advantageous right to disconnect clause than that provided by the Fair Work Act, the agreement’s clause remains applicable to the employee.
Key Takeaways
The new “Right to Disconnect” legislation is intended to manage a healthy work-life balance for all employees. Disconnection from workplace duties is to relieve employees from the pressure and expectation to continue working beyond their scheduled hours. Employees are entitled to refuse any additional work requested outside of work hours unless it is a reasonable request. Company strategies are a great way for employers to assess the risk of taking adverse action, whether intentional or not. All the new updates to the Fair Work Act 2009 (Cth), including the new Right to Disconnect, began on 26 August 2024.
Vocare Law is well equipped to assist our clients struggling with employment issues with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please do not hesitate to contact our office if you have any questions on ensuring your current employment status. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Fran Keyes, Eva Williams and Jack Macpherson
