Is it Reasonable?
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 introduces a significant change to the Fair Work Act 2009, under the heading of “a right to disconnect” for all national system employees.
The amendments will introduce an employee right to disconnect into the Fair Work Act 2009 which makes clear that employees are not required to monitor, read, or respond to employer or work-related contact out of hours, unless refusing to do so is unreasonable.
ICB explains the context:
- The right to disconnect is not that the employee is allowed to ignore communication nor is it that the employee should not receive communication.
- It is that the employee is allowed to raise concerns if the employer is making unreasonable requests for a response.
- Communication is not a problem.
- Unreasonable expectations of a response out of hours could become a problem.
- The new legislation, which commences on 26th August 2025 for small employers, establishes a statutory right for employees to disconnect from work communications if it is reasonable to do so, outside of normal working hours, with provisions for dispute resolution. Larger businesses will be subject to the new provisions from 26th August 2024.
Definition of ‘Small Business Employer’
A small business employer is an employer with fewer than 15 employees at a particular time. If an employer has 15 or more employees at a particular time, they are no longer a small business employer. When counting the number of employees, employees of associated entities of the employer are included. Casual employees are not included unless engaged on a regular and systematic basis.
Key Points of the Amendment
Employee Rights
Employees are permitted to disengage from work-related activities during their non-working hours. The change provides that an employee may refuse to:
- Monitor, read or respond to contact or attempted contact from an employer (or third party relating to their work) outside of the employee’s working hours unless the refusal is unreasonable.
This right is a workplace right within the meaning of Part 3-1, General Protections of the FW Act.
What Practical Steps Can Employers & Business Owners Take Now?
Proper approaches and processes can effectively manage the implementation of the new legislation. In many respects, these laws complement existing obligations that businesses have to safeguard the psychological well-being of their employees. Even if you don’t employ anyone at this stage of your business, this may change in time, and the principles of safeguarding will need to always be considered under these laws.
Employers should proactively review and update their work practices and policies to align with the new regulations. Providing managers with training on the nuances of the right to disconnect is essential. Moreover, employers must handle performance management processes with sensitivity, considering the implications of the new right.
The new law has resulted in many employers seeking guidance on responding to the changes. Please see the checklist below for some practical steps employers can take now in preparation for the start of the changes.
But a determination of unreasonable contact should be discussed with the employee and employer. The right to disconnect is not that the employee is allowed to ignore communication, nor is it that the employee should not receive communication. The essence of the law is that the employee may refuse.
