Our new world of work: the right to disconnect

As employers continue to grapple with significant but piecemeal amendments to the Fair Work Act 2009 (Cth) (Act), further changes were passed by Parliament yesterday.

This article considers the broadest and arguably most controversial of the changes – the right for employees to disconnect from work.

In time, every modern award will include a ‘right to disconnect term’.  A new Division in the Act will protect the employee right to disconnect from “contact” or “attempted contact” by employers and third parties in relation to their work.  This will be protected as a workplace right, covered by the general protections provisions in the Act.  Those protections make adverse action because of the exercise or proposed exercise of a workplace right, punishable by the imposition of civil penalties.

What is the right to disconnect?

The right, is the right to:

• 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;
• Refuse to monitor, read or respond to contact, or attempted contact, from a third party (such as a client, contractor or customer of the employer) if the contact or attempted contact relates to their work and is outside of the employee’s “working hours” unless the refusal is unreasonable.

When is a refusal to connect unreasonable?

There are a number of matters suggested by the new laws to take into account in assessing reasonableness:

• The reason for the contact or attempted contact;
• How the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
• The extent to which the employee is compensated:
  • To remain available to perform work during the period in which the contact is made;
  • For working additional hours outside of the employee’s “ordinary hours of work”;
• The nature of the employee’s role and level of responsibility;
• The employee’s personal circumstances (including family or caring responsibilities).

How are disputes resolved?

There is an expansion of the jurisdiction of the Fair Work Commission (Commission).  The Commission will be empowered to deal with applications to resolve disputes within 14 days provided there has been an attempt to resolve the dispute at the workplace level by discussion between the parties.  This avenue of dispute resolution is in addition to, and does not limit it would appear, a person’s ability to issue proceedings for a breach of general protections not involving dismissal.

In resolving or otherwise dealing with the dispute, the Commission may make orders as it considers appropriate.  The Commission does not have the jurisdiction to order payment of penalties.  Orders might include an order to stop employees from unreasonably refusing to connect, or prevent an employer from disciplining an employee for refusing to connect, or otherwise requiring the employee to connect.

Limited exemptions apply, for example to ensure the new jurisdiction does not prejudice Australia’s defence and national security.

What next?

At the time of writing the effective date of introduction of the laws is not clear, however it is reasonable to expect time will be permitted to enable the Commission to prepare for the applications it may receive.

Employers should immediately commence the review of contracts of employment, policies, procedures and safe work instructions to ensure that in due course these cater for, or specifically consider, circumstances where it can be agreed to be reasonable (or conversely, unreasonable) to contact employees and expect them to connect.  Those circumstances should include and address the suggested matters set out in the new Division (as noted above).

Various aspects of these changes raise questions but not necessarily answers.  It is not clear for example, what the new provisions mean by references to an employee’s “working hours” or the employee’s “ordinary working hours”.  This may present obvious areas of dispute particularly in relation to award free employees, or employees who by reason of their position or remuneration arrangements, do not have those hours defined in contracts.

Specific application of these provisions to employment arrangements will need to be the subject of careful advice given to employers.