Australia’s workplace laws have been fundamentally rewritten after the Federal Government successfully passed a swathe of changes to the Fair Work Act over the past two years.  

Amongst the latest changes to be passed by Parliament in February 2024, one provision has generated a lot of discussion – the right to disconnect for employees. 

But what does it mean for businesses, and what will it look like in practical terms? Our experts explain. 

What is the right to disconnect? 

The changes to the Fair Work Act now include a provision where employees will have the right to disconnect and not respond to their employer after or outside work hours. 

Specifically, the two rights for employees include: 

• 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; and 
• An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable. 

Under the new laws, modern awards will be required to have a right to disconnect term, in addition to a free-standing right to disconnect. 

The Fair Work Commission will be empowered to issue stop orders, similar to stop bullying and stop sexual harassment orders. 

The Commission will also have the power to determine what is “unreasonable” contact, taking into account factors such as: 

• the reason for the contact; 
• the frequency and method of contact; 
• remuneration; 
• role and responsibilities; and 
• the worker’s personal circumstances, which may include family responsibilities. 

The timing of the right to disconnect change is set to be August 26, 2024. 

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What are some of the key areas of concern? 

For WA, the changes could mean restrictions to operations for businesses with staff in the Eastern States – for example, employees are unable to contact WA colleagues until after midday during daylight saving time, while west coast workers would have to cut off interstate business at 2pm WST. 

Businesses with global operations will also be impacted if employers cannot connect with employees out of regular working hours. 

The change could also result in lost business if employees refuse to take urgent calls on a critical matter. Or it could have an adverse impact in the case of a safety incident if a worker is contacted to manage a life-threatening emergency. 

What will the right to disconnect look like in practical terms? 

Businesses that have working from home arrangements with staff may need to consider negotiating separate flexible working arrangements to protect them from right to disconnect claims. 

Employers may also need to review email systems to ensure emails sent after a certain time are only delivered during working hours the following day. 

Similarly, policies and procedures may need to be developed to allow employees to receive at least some information to determine if the contact requires an after-hours response. For example, the matter is not urgent unless a phone call or text message is sent. 

However, it is still unclear how the right to disconnect will interact with overtime and penalty rates. 

What you can do now to prepare

With the right to disconnect change commencing August 26, 2024, you should start reviewing your employment contracts, policies and procedures now. 

Proactively assess how the right to disconnect will impact your organisation, what contact may be reasonable in particular circumstances and what measures you can take to avoid contacting your staff outside ordinary working hours where it is unlikely to be reasonable. 

By forming a picture of employees’ work activities outside agreed-upon working hours you can also create training programs to ensure staff and people leaders and managers comply with the law.

It is recommended businesses put in place a right to disconnect policy to manage this new risk in the workplace. If you need any assistance with this, please contact Chris Nunn, CCIWA’s Principal HR & Learning Consultant, at [email protected].