Preparing for the introduction of a workplace right to disconnect

As part of amendments made to the Fair Work Act 2009 (Cth) (Act) by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, imminent changes will insert a right to disconnect term into modern awards. Mandated by the Fair Work Commission (Commission), all modern awards must include this provision by 26 August 2024 for most employers and by 26 August 2025 for small businesses.

This new workplace right enables employees to refuse to engage with employer or third-party communications outside of their designated working hours without fear of adverse consequences, unless their refusal is unreasonable.

What is the right to disconnect?

Before considering what the right to disconnect is, it may firstly be helpful to outline what the right to disconnect is not. The right to disconnect does not prevent employers from contacting their employees outside of the employee’s normal working hours.

The right to disconnect instead gives employees the right to refuse to monitor, read, or respond to communications from their employer (or third parties related to their employment, such as suppliers) outside their working hours, unless that refusal would be unreasonable. This entitlement is also a workplace right under the general protections provisions of the Act, ensuring that employees who reasonably decline after-hours contact are not subjected to adverse action by their employers.

When determining whether an employee’s refusal to respond to out-of-hours contact is reasonable, there are a number of factors to take into consideration. These factors include:

• the reason for the contact;
• how the contact is made and how disruptive it may be to the employee;
• whether the employee is compensated for being available for out-of-hours contact/working additional time;
• the purpose of the communication; and
• the specific responsibilities associated with the employee’s role.

However, other matters may be taken into consideration.

If there is a dispute about the right to disconnect, employees and employers must firstly try to resolve this at the workplace level. If the dispute cannot be resolved, both employees and employers can ask the Commission to deal with the dispute. The Commission may make orders, such as requiring an employee to respond to contact, or requiring an employer not to make contact, outside of normal working hours.

How can employers prepare?

For many employers, the introduction of the right to disconnect may not pose any significant changes to their way of working. However, some steps you may choose to take to prepare your organisation are:

• Assess whether there are certain roles that are likely to receive out of hours contact, particularly those where the employer may not have visibility over the amount of contact, such as store managers.
• Conduct education with leaders at all levels of the business on the right to disconnect, assessing what is reasonable refusal, and how they can ensure they do not take adverse action against employees exercising this workplace right.
• Review your workplace policies to ensure they are not contrary to the right to disconnect.
• Familiarise yourself with the right to disconnect that is inserted into your modern award. The Commission will be publishing final determinations that vary the modern awards by 23 August 2024.

Although the right to disconnect does not prevent employers from making contact with employees, it is an apt time to consider the psychosocial hazards that may exist where employees are receiving frequent out-of-hours contact and seek ways to minimise the impact of this. This could be by:

• Educating employees who are not required to respond to out-of-hours contact on how to mute notifications on work devices;
• Incorporating messaging on emails that informs employees that even where they receive an email out-of-hours, they are not required to respond; or
• Ensuring non-urgent, out-of-hours emails are scheduled to be sent during working hours.

If you require guidance regarding the right to disconnect, please contact our Workplace Relations team via the National Retail Association’s hotline on 1800 RETAIL (738 245).

On the 26th August 2024, NRA Legal is hosting a FREE 30-minute webinar on the on the right to disconnect. Register here.