The right to disconnect provisions in the Fair Work Act 2009 (Act) and in modern awards commenced on 26 August 2024 for businesses with 15 or more employees. In the lead up to the commencement of these provisions, there has been a flurry of concern from employers about what the provisions will mean for them. The purpose of the right to disconnect is to allow an employee to refuse contact or attempted contact from their employer/third party outside of working hours where it is reasonable to do so. This includes a right to not monitor, read or respond to contact or attempted contact. If and when a dispute arises about such contact and the employee’s refusal to respond to contact or attempted contact, the employee will have the right to notify a dispute to the Fair Work Commission (FWC). The employer also has the right to notify a dispute to the FWC if they consider the employee’s refusal to be unreasonable in the circumstances.
When determining whether or not the refusal of contact or attempted contact is reasonable, the FWC will have regard to a range of factors, including: the reason for the contact; how the contact/attempted contact was made and the level of disruption the contact/attempted contact caused the employee; the extent to which the employee is compensated to remain available during the period in which the contact/attempted contact was made (e.g. an on-call allowance) or for working additional hours outside their ordinary hours of work (e.g. overtime); the nature of the employee’s role and level of responsibility; the employee’s personal circumstances (including family or caring responsibilities).
Before notifying a dispute to the FWC, the parties must first try to resolve the dispute in direct discussions. If the matter is not resolved, the dispute application can be made to either obtain an order to stop refusing contact or stop taking certain actions and/or to have the FWC deal with the matter by means of mediation, conciliation, recommendation, opinion or arbitration. If the FWC makes an order, it must be complied with. If the order is not complied with, a penalty of up to 60 penalty points (currently $18,780).
The right to disconnect is a ‘workplace right’ for the purpose of the general protection against adverse action provided for in section 340 of the Act. This means that if an employer was to take adverse action against an employee because of their right to disconnect, the employee will be entitled to take a general protections claim against the employer. ‘Adverse action’ includes dismissal, injuring an employee in their employment, altering the position of the employee to the employee’s prejudice or discriminating between employees).
In addition to the right to disconnect provisions in the Act, the FWC has included a right to disconnect provision in all modern awards. This provision is slightly different from and goes beyond the scope of what is provided for in the Act in that it provides that ‘(a)n employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act‘. At this stage, it is unclear what this provision is intended to mean. However, it appears that the award provision will permit contact outside of working hours where an employee is being paid a stand-by allowance or equivalent payment, when the award allows for an emergency roster change or recall to work provision, or the employer’s contact is to notify an employee that they are required to attend or perform work and the contact is in accordance with the usual arrangement for such notification (e.g. an offer of casual employment). Whereas an award free employee could only make use of the right to disconnect provisions in the Act, an award employee could make use of either the provision in the Act or the provision in the modern award, or both.
Until such time as the first dispute is notified to the FWC and then heard and determined by a Full Bench, we will not know how the FWC will interpret the provisions in the Act and modern awards. This is because, for now, the FWC has chosen not to issue written guidelines. However, we can expect the Full Bench to include guiding principles in the first decision, as they did in 2023 in relation to the then new provisions of the Act allowing employees and employers to notify a dispute to the FWC regarding a request for a flexible working arrangement.
For practical purposes, the right to disconnect provisions in the Act and modern awards should cause employers to reflect on whether practices have been adopted which infringe on reasonable boundaries between work and personal life and, if they have, to ensure that line managers and others contacting employees outside of working hours have a clear understanding of their obligations.
If and when the employee refuses contact/attempted contact outside of working hours and the employer considers that refusal to be unreasonable, they first need to engage in direct discussions and make a genuine effort to resolve the matter with the employee. If this does not resolve the matter and the employer wishes to press their view that the refusal is unreasonable, the employer should not take any adverse action (e.g. disciplinary action) against the employee but should instead notify a dispute to the FWC. Taking adverse action in such circumstances instead of notifying a dispute would not only likely breach s.340 of the Act (general protection against adverse action), it would also likely render any associated direction to the employee to be unlawful and unreasonable and therefore unenforceable.
We recommend that employers review their practices in relation to contact with employees outside of working hours and develop a plain English policy which informs all employees, including line managers, of the right to disconnect and provides clear guidelines about what contact can and cannot be made with employees outside of working hours and expressly state that detrimental action cannot be taken against an employee if they refuse contact. In order to educate and engage employees (including line managers) about the right to disconnect and minimise the risk of a future dispute and/or breach of the right to disconnect, the policy should be developed in consultation with employees, with their feedback on its content taken into consideration. The new policy should ultimately be reviewed on a regular basis and amended as required, especially once a Full Bench of the FWC hands down a decision with guiding principles.
We also recommend that employers introduce a practice of scheduling emails that would otherwise be sent outside of working hours to be sent during working hours or including a note with each email to the effect of ‘I have sent this email at a time convenient to me, however you are not expected to respond this email until your usual working hours’.
The right to disconnect provisions in the Act and modern awards will apply to small business employers (fewer than 15 employees) from 26 August 2025.
