Changes to Fair Work Act: New Right to Disconnect

You may have read recently about the introduction of a "Right to Disconnect," a provision aimed at promoting work-life balance and mental well-being in the digital age.

Understanding the Right to Disconnect

The Right to Disconnect means that, as a general rule, employees can refuse to engage in work-related communications outside of their regular working hours. This initiative recognizes the importance of setting boundaries between work and personal life to prevent burnout and maintain overall health and productivity.

Implementation for Businesses and Small Businesses

Effective from the 26 August 2024 (or 26 August 2025 for small businesses with less than 15 employees), the Right to Disconnect applies to all businesses. This means that employers must respect their employees' downtime and refrain from contacting them during non-working hours, such as evenings, weekends, and holidays.

Exceptions and Considerations

Whether a refusal by an employee to engage is unreasonable will depend on the circumstances. The following factors must be considered:

• the reason for the contact

• the nature of the employee's role and level of responsibility

• the employee's personal circumstances

• how the contact is made and how disruptive it is to the employee; and

• any relevant extra pay or compensation they receive for working additional hours or remaining available to work out of hours

  
  

What is reasonable and unreasonable?

At this point, there is little guidance on the sorts of contact that would be reasonable or unreasonable.

The Fair Work Ombudsman gives an example of unreasonable contact, namely an employee who leaves at 4.00pm to pick up their child. Contacting that employee at 4.15pm with an urgent issue might well mean that it is reasonable for the employee to refuse.

The Ombudsman's example of an unreasonable refusal is one where an employee is informed in advance that certain out of hours work might be required but who decides to refuse in a genuinely urgent situation.

Amendments to various awards suggest that emergency roster changes and recalls to work as permitted under those awards, are generally permissible (although you should check the particular award before taking any action.)

It is a good idea for employers to review any enterprise agreements, and to work with staff to develop policies which are tailored to your workplace about the circumstances in which it is generally agreed that contact may occur. Having this kind of mutual understanding will be likely to avoid future claims, more so if there is general agreement that the contact is fair.

If you need help with a policy, please get in touch to discuss your requirements - we are happy to help.