By Tina Zawila
From 26th August 2024, employees will have the right to disconnect from work communications outside of working hours. Note that this date changes to 26th August 2025, for employees of small business employers. This right will be protected under the ‘General Protections’ provisions of the Fair Work Act.
With technology enabling us all to stay connected almost 24/7 these days, it’s easy to fall into the habit of checking emails, speaking by phone or responding to text messages at all times. However, the new “right to disconnect” provides employees with the right to refuse to monitor, read or respond to contact, or attempted contact from:
Their employer outside of the employee’s ‘working hours’ unless the refusal is unreasonable and/or
From a third party if the contact or attempted contact is related to their work and is outside of the employee’s ‘working hours’ unless the refusal is ‘unreasonable’
In practice, this means that employees will be entitled to ignore calls, emails, text messages and other forms of contact from their employer and clients outside of their working hours unless doing so would be ‘unreasonable’. However, it is important to note that there is no prohibition on employers contacting an employee after hours. Therefore, while employers may still contact their employees, it will be unlawful for employers to take adverse action (or otherwise discriminate against) an employee because they have lawfully exercised their right to disconnect. It is up to the employee whether they choose to accept the contact by their employer.
A key factor is whether a refusal is ‘unreasonable’, and this will depend on a range of factors relevant to the working relationship including, the reason for the contact, the level of disruption, how an employee is compensated, their role and responsibility, and the employee’s personal circumstances.
The Fair Work Commission is empowered to deal with disputes about the right to disconnect, including making determinations about whether an employee’s refusal is unreasonable.
Employers should consider whether it’s appropriate to contact their employees or expect that they will monitor and respond to communication outside of their working hours in light of their industry, the role and responsibilities of the employee and their remuneration arrangements.
If you need further advice or information, please contact the professional team at UHY Haines Norton CQ on 07 4972 1300.
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