In the ever-evolving landscape of IR, Australian businesses and employees are on the brink of a significant legal shift – the “right to disconnect.” This amendment to the Fair Work Act 2009 aims to redefine the boundaries between work and personal time. So, what exactly does this mean for employers?

Understanding the “right to disconnect”

Contrary to popular belief, the proposed legislation does not outright ban after-hours contact between employers and employees. Instead, it empowers workers to refuse to engage with work-related communication outside of their designated working hours, unless such refusal is deemed unreasonable.

This introduces a flexible framework, requiring consideration of various factors by both parties and the Fair Work Commission (FWC). It leaves a significant degree of flexibility about what is “unreasonable” and forces business owners, employees, and the FWC to consider the specific circumstances in of each business.

According to the proposed legislation, it may be “unreasonable” for an employee to refuse out-of-hours contact based on the following:

  • The reason for out-of-hours contact
  • How the contact is made
  • The level of disruption to the employee
  • The extent to which an employee is compensated, including whether they receive an on-call allowance or are paid handsomely for working outside of ordinary hours
  • Any non-monetary compensation the employee may receive, on top of their wage
  • The nature of the employee’s role and responsibility
  • The caring responsibilities of the employee

What type of contact is ok?

In essence, the proposed legislation aims to shield entry-level employees from the obligation of responding to emails outside of their designated work hours. However, various factors outlined in the legislation provide employers with some flexibility in certain situations.

The legislation recognises that the extent of an employee’s responsibilities may correlate with increased expectations for after-hours availability. Additionally, it safeguards employers who offer additional shifts to casual workers beyond their regular schedules.

Business owners retain the ability to contact employees during exceptional circumstances outside of standard working hours. The legislation acknowledges the contribution of non-monetary compensation, particularly relevant in start-up environments where founding teams often invest significant time and effort, known as “sweat equity,” into launching a new venture.

Dispute resolution and exclusions

Disputes arising from after-hours contact refusal will be addressed initially at the workplace level, with the option to escalate to the FWC if needed. The FWC holds the power to enforce stop orders and provide appropriate remedies. The FWC also holds the authority to dismiss any “frivolous or vexatious” requests for an FWC order, particularly in cases where either the workplace or the employee demonstrates clear bad faith.

The FWC reserves the right to decline claims that pertain to:

  • Matters concerning national defence and security
  • Covert operations, such as those conducted by the Australian Federal Police (AFP)
  • Existing or prospective international operations conducted by the AFP

What about fines?

The law does not allow the FWC to directly fine either the employee or employer. However, if someone disobeys an order from the FWC, they could face penalties. In simple terms, fines are only given if someone breaks a rule set by the FWC. The maximum fine under the proposed law is 60 penalty units, equivalent to $18,780. It is important to note that provisions are set to be included to ensure small businesses will not face these hefty fines.

Timeline and assistance

The “right to disconnect” legislation is expected to come into effect six months after receiving royal assent, with an additional 12-month grace period for small businesses. The FWC will provide written guidelines to aid businesses in understanding and implementing the changes effectively.

The FWC will be tasked with amending modern awards when the “right to disconnect” legislation comes into effect. Should an enterprise agreement contain provisions more advantageous to the employee compared to the rights outlined in the bill, the original rights will continue to be upheld.

If you need assistance navigating the upcoming “right to disconnect” changes in your workplace, get in touch with our team who can assist. Find our articles helpful? Remember to follow us on Facebook, Instagram or LinkedIn to keep up to date with our practical tips and information for business owners and managers.