On 26 August 2024, the new workplace ‘Right to Disconnect’ rules came into effect.
These new rules were introduced as part of the second wave of sweeping ‘Closing Loopholes’ reforms to the Fair Work Act 2009 passed by the Federal Parliament in February 2024.
Also included in this second wave of reforms were:
- new casual employee rights (including a new ‘employee choice’ casual conversion pathway);
- a new definition of ‘employee’; and
- new unfair contract rights for independent contractors.
Despite the fact that the Right to Disconnect rules were passed by the Parliament over 6 months ago in February 2024, the weeks leading up to the commencement of the rules saw a flurry of media reporting about the potential serious impact these rules were likely to have on employers and businesses.
In order to ensure that employers and businesses properly understand the new Right to Disconnect rules (and the rights and obligations arising from those rules), it is necessary to ‘bust’ the main media myths and narratives surrounding these rules.
MYTH – Employers can no longer contact Employees outside their ordinary working hours
The main media narrative surrounding the Right to Disconnect rules is that employers will no longer be able to communicate with their employees outside of employees’ ordinary working hours.
Although the Right to Disconnect rules seek to regulate out-of-hours contact between employers and employees, the rules do not prevent or even restrict employers from contacting and/or sending out-of-hours communications to their employees.
What the Right to Disconnect rules do is confer a positive workplace right on an employee to refuse to monitor, read, or respond to contact, or attempted contact from the employer (or a third party relating to the employee’s work) outside of the employee’s ordinary working hours, unless the employee’s refusal is unreasonable.
In other words, if an employer contacts or sends communications to an employee outside of the employee’s working hours, the employee is free to either respond or not respond to that contact or communication. However, where the employer wishes to challenge or discipline the employee in relation to their refusal to respond to the contact or communication, the employer must establish that the employee’s refusal to respond was unreasonable in the circumstances.
By way of example, it may be reasonable for an employer to contact an employee after hours (and expect a response):
- if the employee is engaged in an ‘on-call’ position and/or ask to fill an urgent shift vacancy;
- to alert employees about workplace emergencies, office closures or worksite changes, or changes to duties, tasks and deadlines; or
- to direct staff not to attend the workplace due to suspensions and workplace investigations.
Additionally, the Right to Disconnect rules do not prevent an employer from sending communications to employees outside of the employees’ ordinary working hours where it is understood that the employee may read and respond to the communication when they next return to work.
Finally, the Right to Disconnect rules confirm that any contact required to be made outside an employee’s ordinary working hours pursuant to a Commonwealth, State or Territory law is always reasonable in the circumstances.
MYTH – The Right to Disconnect only provides rights for Employees
Although the Right to Disconnect rules are primarily drafted and framed as a right for employees, the rules nevertheless provide rights and remedies for employers where employees refuse to monitor, read and respond to contact and communication outside of their working hours.
Where an employee unreasonably exercises this right, an employer may make an application to the Fair Work Commission to deal with a ‘Right to Disconnect dispute’ (albeit only after attempting to informally resolve the dispute with the employee at the workplace level). The Fair Work Commission is empowered to resolve such disputes through conciliation or mediation, by making recommendations or expressing opinions, or via formal arbitration.
In the case of arbitration, where the Fair Work Commission is satisfied that the employee is unreasonably refusing to monitor, read or respond to contact or attempted contact and there is a risk the employee will continue to do so, the Fair Work Commission can make an order directing the employee to stop unreasonably refusing to monitor, read or respond to the employer’s contact or attempted contact.
Critically, where the Fair Work Commission issues a ‘stop order’ against an employee and the employee continues to refuse to monitor, read or respond to the employer’s contact or attempted contact, the employer would be entitled to take appropriate disciplinary action against the employee. Any decision to dismiss an employee for breaching a stop order would likely constitute a valid and fair dismissal (provided that procedural fairness was afforded to the employee before the dismissal took effect).
Further, where the Fair Work Commission determines that an employee’s refusal to monitor, read or respond to the employer’s contact or attempted contact was unreasonable, any complaints or inquiries made by the employee about the requirement to be contacted or respond to such contact may no longer be seen as the exercise of genuine ‘workplace rights’ and thus may help the employer defeat a General Protections claim.
MYTH – The Right to Disconnect will hurt Employees with predominantly casual workforces
Despite significant media attention over the potential impact of the Right to Disconnect rules on business and industries with predominantly casual workforces, it is unlikely that casual employees will regularly exercise the right to refuse to respond to out-of-hours contact by an employer in relation to rostering arrangements and shift requests.
Although the Right to Disconnect rules give employees the right to refuse to monitor or respond to contact from their employer outside the employees’ working hours, as noted above this right is not unrestricted and must be exercised reasonably in the context of the employees’ position and duties.
Where employees are engaged on a casual basis and are regularly required to attend for shifts at short notice, it is reasonable to expect employers to contact those casual employees outside of ordinary working hours (e.g. overnight or early in the morning) from time to time. Further, it is reasonable to expect those employees to respond to that contact (i.e. by either accepting or not accepting requests to work shifts) as soon as reasonably practicable so that the employer can make further inquiries with its other casual employees if and as required.
As a practical matter, it is also unlikely that casual employees would refuse to read or respond to out-of-hours contact by the employer about work requests, since refusing to do so would deny those employees of shift opportunities and therefore further earnings.
Although it remains to be seen how the Fair Work Commission will arbitrate and determine disputes between employers and casual employees, it is likely that the Fair Work Commission will consider the need to read and respond to out-of-hours contact as a necessary feature of casual employment and an implied contractual obligation for casual employees.
Action Items
In summary, despite all of the media reporting that suggested otherwise, the new Right to Disconnect rules will not destroy the modern business landscape as we know it. Nevertheless, employers and business must familiarise themselves with the new rules and remain vigilant of the new rights and obligations introduced by the rules.
To ensure compliance with the new rules and minimise the prospects of employee disputes, employers and businesses MUST:
- review and update employees’ contracts and position descriptions to include terms confirming that employees may need to read, monitor and respond to reasonable out-of-hours contact by the employer from time to time, and acknowledging that the need to be read, monitor and respond to such contact is reasonable;
- review and update any relevant existing policies and procedures impacted by the new Right to Disconnect rules (e.g. any ‘on-call’ policy, Code of Conduct, and any dispute resolution/grievance policy);
- provide training and instruction to managers to ensure they are aware of the new Right to Disconnect rules, including the restrictions they impose on out-of-hours contact with subordinate employees and the circumstances where such out-of-hours contact is reasonable or necessary; and
- seek professional legal advice as soon as possible when disputes with employees arise.
Questions/Assistance
If you have any questions in respect of the above or would like any other employment related assistance, please contact our Matthews Folbigg Workplace Solutions employment law team.
Principal
Principal
Disclaimer
This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.
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