Articles

13 February 2025

The Right to Disconnect under the Fair Work Act

Breanna Beale

Since the COVID-19 pandemic, many workplaces have seen a shift to remote or hybrid working arrangements.  As a result, the distinction between working and non-working hours has become somewhat blurred. With more and more employees being able to connect to work from “wherever the wi-fi allows”, what rights do they have to disconnect from work altogether and refuse contact from their employer? The Fair Work Act 2009 (“the Act”) now recognises and protects an employee’s right to disconnect, following recent workplace changes introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. From 26 August 2024 (or from 26 August 2025 for small business employers) employees can “switch off” and refuse to read, monitor, or respond to any contact or attempted contact from their employer (or from third parties where the contact is in connection with their employment) outside their working hours. What is Contact? The term ‘contact’ is not defined.  As such, it ought to be given its ordinary meaning, which would include communication via emails, phone calls, text messages and other messaging services such as Teams or WhatsApp. The changes do not stop or prohibit employers from contacting employees outside of working hours. Rather, the changes allow employees to choose whether or not they respond to such contact and can refuse to respond provided the refusal is “reasonable”. Reasonable Refusal The amendments do not define what is reasonable or unreasonable.  However, there is some guidance for determining whether a refusal is reasonable, including: The reason for the contact; How the contact is made and how disruptive it is to the employee; The extent to which the employee is compensated to be available or to work outside their normal hours; The nature of the employee’s role and their level of responsibility; and The employee’s personal circumstances including any family or caring responsibilities. For example, John is a casual employee, who works irregular hours.  He is contacted by his employer outside of his rostered shift, via text message, to see whether he is able to work the following day.  John refuses to respond, because he has a right to disconnect.  However, it is possible that John’s refusal is not a “reasonable refusal” because the contact was: For the purpose of offering John further hours of work; and Via text, and unlikely to cause any disruption to John because he could respond at his leisure. If, however, John has previously told his employer that he will not be available for any additional shifts (i.e. those he has not been rostered to work), then John’s refusal will likely be a “reasonable refusal” because his employer is aware (or ought to be aware) that he does not want additional shifts and therefore the contact is unnecessary. Setting expectations The new provisions present an opportunity for employers to engage in discussions with employees to set out expectations when being contacted outside of their working hours, including the type of contact, the expectations around responding and how an employee will be compensated for same. It will be important for employers to educate those in managerial or leadership roles to consider whether it is appropriate to contact an employee outside their working hours. Resolving disputes Where a dispute arises between an employer and employee as to the reasonableness of contact outside an employee’s working hours, the Fair Work Commission (“the Commission”) requires the parties to attempt to resolve the issue at workplace level (in the first instance). In the event that the dispute cannot be resolved at the workplace level, either party can make an Application to the Commission. Relevantly, employers should be aware that the right to disconnect is now recognised as a workplace right.  As such, any action taken against an employee for asserting his or her right may be a contravention of the general protection provisions under the Act, which could result in the affected employee making a general protections claim. What’s next? All modern awards have been updated to include the right to disconnect. The Fair Work Commission will also make written guidelines on how the right will operate. Are you prepared? If you’re an employer, you may want to consider taking steps to ensure you are complying with your obligations under the Act, by: Updating employment contracts to include the employer and employee’s rights and obligations around the right to disconnect; Updating existing policies and procedures (or alternatively, implementing a policy or procedure addressing the right to disconnect and any associated expectations); Updating your organisation’s dispute resolution process; and Communicating any changes to employees. Workplace and employment law is constantly changing.  We recommend reviewing your contracts, policies and procedures frequently to ensure that they are up to date and comply with your statutory obligations. If you require assistance with the recent changes, or your employment matters generally, please do not hesitate to contact our Employment Law Team on (07) 4963 2000 or via the contact form below.