“That’s a Monday problem” – The “Right” to Disconnect

Background

Recent amendments to the Fair Work Act 2009 (Cth) (“FWA”) provide the ability for employees,[1] in certain circumstances, to now refuse contact or attempted contact from their employer (or from a third party where such contact relates to their employment) outside of the employee’s working hours.

The amendments also empower the Fair Work Commission to deal with disputes between an employer and employee about the “right” to disconnect, including by making orders to stop an employee from refusing contact or to stop an employer from taking certain actions.[2]

The amendments follow the surge in flexible working arrangements that have arisen since the pandemic, especially in professional services, and responds to growing concerns about work-related mental health issues.

The commencement date in relation to businesses that employ 15 or more employees was on 26 August 2024, and in relation to businesses that employ less than 15 employees the changes take effect on 26 August 2025.

Amendments

Schedule 1 part 8 of the amending Act inserts into section 12 of the FWA the definition of a “right to disconnect term” (“Disconnect Term”) which is defined as a term in a modern award that provides for the exercise of an employee’s rights set out in subsections 333M (1) and (2) of the FWA.

Following the amendment, s 149F of the FWA imposes the requirement that modern awards must include a Disconnect Term.

An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer, or a third party, outside of the employee’s working hours unless the refusal is unreasonable.[3] The obvious caveat to the “right” to disconnect, is therefore, the question as to whether such refusal may be unreasonable on the part of the employee who refuses to relevantly monitor, read or respond in relation to a particular work-related communication.

There are explicit carve outs in the amended FWA in relation to the new rights and the jurisdiction of the Fair Work Commission which prevent any compromise to intelligence operations and Australia’s defence forces and national security interests.

When can I refuse to respond to a work-related communication?

A non-exhaustive list of matters that may be considered in determining the question of whether an employee’s refusal is unreasonable are set out under s 333M (3) of the FWA and include:

• 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 or attempted contact is made; or
• for working additional hours outside of the employee’s ordinary hours of work;
• the nature of the employee’s role and the employee’s level of responsibility;
• the employee’s personal circumstances (including family or caring responsibilities).

For instance, therefore, a lawyer with carriage of a court hearing at 10:00am on a Tuesday morning, is unlikely to be able to justify a refusal to respond to an email from a client or a colleague after work hours on the Monday evening containing items that require actioning or clarification, for the lawyer to effectively conduct the Tuesday morning hearing.

Conversely, support or administrative stuff in professional services organisations may be better placed to justify the reasonableness of refusing after hours contact given the nature of their role and if their remuneration is not commensurate with an expectation of being available to work outside of the employee’s contracted hours.

The upshot is that the question as to whether a refusal is unreasonable for the purposes of s 333M of the FWA is a very fact-specific matter. Employees whose employment is captured by the amendments will have to wait for guidance from the courts and the Fair Work Commission in respect of the interpretation of what may constitute an unreasonable refusal by an employee in the context of s 333M of the FWA.

Relief for Employers and Employees  

The “right” to disconnect is a workplace right within the meaning of Part 3-1 of the FWA.[4]  Consequently, the general protections provisions under the FWA are engaged, preventing an employer from taking “adverse action” against an employee for insisting on the employee’s right to refuse contact after hours, provided the refusal is not unreasonable for the purposes of s 333M of the FWA.

Adverse actions against employees include dismissal and altering the position of an employee to their prejudice and discriminating between employees.

For instance, it would be unlawful under part 3-1 for an employer to dismiss an employee that exercises their rights in accordance with ss 333M (1) and (2) to refuse contact outside of their working hours.

Disputes arising between an employee and employer in relation to the disconnect rights will be subject to a mandatory dispute resolution process in the workplace between the parties pursuant to s 333N (2) of the FWA, failing which an application may be made by either party to the dispute to the Fair Work Commission for appropriate relief.

Section 333N (3) of the FWA empowers the Fair Work Commission to make the following orders in relation to the dispute:

• in the case of a finding that an employee has unreasonably refused contact, an order preventing the employee from continuing to unreasonably refuse contact; and
• in the case of a finding that an employee has not unreasonably refused contact, an order preventing:

1. the employer from taking disciplinary action against the employee on the basis of the employer’s belief that the refusal is unreasonable;
2. the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.

Upon any party bringing an application for orders under s 333P, the Fair Work Commission must commence dealing with the application within 14 days following receipt, and deal with the same as soon as reasonably practicable thereafter.[5]

Tips for HR

In light of the FWA amendments, employers and HR departments should consider the extent to which their policies and employment contracts respond to these amendments to the FWA.

For instance, if an employee’s contract does not deal with the issue of after hours contact and there is ever a dispute before the Fair Work Commission in relation to an employee’s refusal to be contacted,  the Commission may be more inclined to make a finding that such refusal was not unreasonable. Internal policy documents should deal with the new rights and specify that those rights do not amount to a universal prohibition in favour of the employee, and should perhaps define various metrics which ought to inform a consideration of whether refusal of contact is unreasonable in various contexts.

There will need to be extra training and awareness amongst HR professionals in relation to how the rights operate in the broader legislative context of the FWA, including the restrictions on employers taking adverse action on the basis of an employee’s reasonable insistence on the rights that may be available to them pursuant to s 333M of the FWA, or in any more favourable enterprise agreement.[6]

The upshot is that employers need to undertake a targeted assessment within the context of the relevant organisation and business model and adjust contractual and policy documentation commensurately.

Conclusion

With an election looming, the Federal Opposition are considering changes to the industrial relations reforms introduced by the Albanese government.

Victorian Liberal Senator, Jane Hume, recently stated in an interview with the ABC’s David Speers, that the Coalition, if elected, would consider the utility of the recently introduced “Right to Disconnect” laws as part of its plan to bolster productivity and sustainable wage growth.

Our firm will be keeping abreast of both the implementation (including case developments) as well as any potential changes in relation to this new framework.

If you require any assistance or further information in respect of the amendments to the FWA and the implications for your business or employment, please contact Nigel Pakes or Michael Boulos by email on npakes@mphlawyers.com.au or mboulos@mphlawyers.com.au or on (08) 9221 0033.

[1] Fair Work Legislation Amendments (Closing Loopholes No. 2) Act 2024 (given royal assent on 26 February 2024).

[2] Section 321 of the Fair Work Act 2009 (Cth).

[3] Sub-sections 333M (1) and (2) of the Fair Work Act 2009 (Cth).

[4] Section 333M (4) of the Fair Work Act 2009 (Cth).

[5] Section 333P (3) of the FWA.

[6] Section 333M (6) of the FWA.