- Date:
- 23 Aug 2024
The right to disconnect, one of the more controversial amendments to the Fair Work Act 2009 (Cth) (Fair Work Act) in recent times, commences on 26 August 2024. While there has been substantial commentary on the possible implications of the new right to disconnect, it is useful to consider:
- Where does the right to disconnect come from?
- What does the right to disconnect encompass?
- How will it operate?
This article addresses these matters.
Where does the right to disconnect come from?
Fair Work Act
The right to disconnect was inserted in the Fair Work Act by s 344 of the Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024. It is one of a number of changes implemented by the Federal Government to reform the Australian employment law regime.
Although a right to disconnect with such broad application has not been seen in Australia to date, it is not an entirely new concept. The right is observed internationally in countries including France, Spain and Portugal. Enterprise agreements such as the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 have included a similar right for a number of years.
Modern awards
In addition to the right under the Fair Work Act, the Fair Work Commission (Commission) is required to insert a right to disconnect term into all modern awards by 26 August 2024. Following consultation, the Commission published a draft term on 11 July this year. The deadline for submissions regarding the draft term closed on 1 August. The Commission is expected to publish final determinations varying modern awards by 23 August 2024.
Enterprise agreements
All enterprise agreements approved by the Commission after 26 August 2024 are likely to include a right to disconnect in some form because employees who are covered by an enterprise agreement must be "better off overall" in comparison to the underlying award.
The Victorian Public Service Enterprise Agreement 2024 contains a right to disconnect clause which is similar to the Fair Work Act provisions. However, unlike the Fair Work Act, this clause also contains examples of when it would be reasonably necessary for an employer to contact an employee out of hours (including where business and operational reasons require contact out of hours).
What does the right to disconnect encompass?
Under the Fair Work Act, the right to disconnect allows employees to refuse to monitor, read or respond to contact, or attempted contact, from an employer or third party outside their working hours, unless that refusal is unreasonable. The focus of the legislation is on the reasonableness of the employee in refusing contact, rather than prohibiting an employer from making, or attempting to make, contact.
Whether it is reasonable for an employee to refuse contact will depend on an assessment of a range of matters, including:
- 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 contact or attempted 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).
Some useful resources on the right to disconnect include:
- Australian Public Service Commission's (APSC) guidelines
- Education material from the Commission including:
Disputes about the right to disconnect
The right to disconnect commences operation on 26 August 2024 for employers other than small business employers, and on 26 August 2025 for small business employers.
Disputes regarding the right to disconnect can arise in a variety of ways, including those listed below.
General protections
Employers are prohibited from taking adverse action against an employee for exercising their right not to respond to communications from their employer or a third party outside of their ordinary working hours (unless their refusal is unreasonable). If an employer takes adverse action against an employee for exercising their right to disconnect, an employee may institute a general protection claim under the Fair Work Act.
Stop order
If there is a dispute between an employer and an employee because the employee has refused contact and either the employer reasonably believes that the refusal is unreasonable, or the employee believes their refusal is reasonable, the employer and employee must attempt to resolve the matter at the workplace level.
If discussions at the workplace level do not resolve the dispute, either the employer or the employee can apply to the Commission to:
- make an order to stop certain actions
- otherwise deal with the dispute.
The Commission may make any order it considers appropriate (other than an order requiring the payment of a monetary amount) if the Commission is satisfied that:
- an employee has unreasonably refused contact and there is a risk the employee will continue to do so
- an employee’s refusal is not unreasonable and there is a risk that the employer will:
- take disciplinary or other action against the employee because of the employer’s belief that the refusal is unreasonable
- continue to require the employee to monitor contact despite the employee’s refusal to do so.
These orders may include an order to prevent:
- the employee from continuing to unreasonably refuse contact
- the employer from taking disciplinary action
- the employer from continuing to require the employee to monitor contact.
Breaching a 'stop order' in relation to the right to disconnect may attract civil penalties under the Fair Work Act.
Dispute under modern award or enterprise agreement
Depending on the term of the modern award or enterprise agreement, an employer or employee may raise a dispute under the relevant industrial instrument which can lead to the Commission arbitrating the dispute.
Breach of modern award or enterprise agreement
Depending on the wording of the modern award or enterprise agreement, if an employer fails to comply with their obligations under the relevant industrial instrument, they may be found by a court to have breached the modern award or enterprise agreement, which may result in civil penalties.
Contact our team
For further advice and guidance on how to prepare for the right to disconnect, employers in the Victorian Public Sector can contact the VGSO's Workplace Relations and Occupational Safety Team:
Assistant Victorian Government Solicitor
E. frances.anderson@vgso.vic.gov.au
Lead Counsel
Lead Counsel
E. dana.wintermantel@vgso.vic.gov.au
Lead Counsel
E. veronica.belot@vgso.vic.gov.au
Lead Counsel