By Megan Flower

Employees will soon be entitled to ‘disconnect’ from work under new changes to the Fair Work Act 2009 (Cth) (Fair Work Act).

For the majority of employers and employees, these changes will commence from 26 August 2024.

However, “small business employers”[i] and their employees will have an additional year, with the provisions coming into effect for them from 26 August 2025.[ii]

What is the right to disconnect?

Under the new section 333M(1) of the Fair Work Act, an employee may refuse to monitor, read, or respond to contact (or attempted contact), from an employer outside of the employee’s working hours unless the refusal is unreasonable.

Similarly, under the new section 333M(2), an employee may refuse to monitor, read, or respond to contact (or attempted contact), from a third party if:

• the contact or attempted contact relates to their work; and
• is outside of the employee’s working hours;

unless the refusal is unreasonable.

A third party might include a client, customer, or supplier of the employer.

When is an employee’s refusal unreasonable?

In determining whether an employee’s refusal is unreasonable, the following factors are to be considered:

• the reason for the contact or attempted contact (e.g. if the reason for the contact is time sensitive);
• how the contact or attempted contact is made, and the level of disruption that the contact or attempted contact causes the employee (e.g. an email vs. a phone call, the length of time involved to address the issue);
• the extent to which the employee is compensated:
• to remain available to perform work during the period in which the contact or attempted contact is made (e.g. a standby or on-call allowance); or
• for working additional hours outside of their ordinary hours of work (e.g. payments for recall or overtime);
• the nature of the employee’s role and their level of responsibility (e.g. a managerial role); and
• the employee’s personal circumstances (including family or caring responsibilities).[iii]

However, an employee’s refusal will always be unreasonable if the contact or attempted contact is required under a Commonwealth, State, or Territory law.[iv]

Dispute resolution

The Fair Work Act will contain a specific dispute resolution procedure for the right to disconnect.[v]

At first, parties will need to attempt to resolve disputes by discussions at a workplace level.[vi] If discussions fail, a party may then apply to the Fair Work Commission (FWC) to make orders under section 333P of the Fair Work Act and / or otherwise deal with the dispute.[vii]

The FWC may make a section 333P order where:

• an employee has unreasonably refused to monitor, read, or respond to contact (or attempted contact) and there is a risk that the employee will continue to do so; or
• an employee’s refusal to monitor, read, or respond to contact (or attempted contact) is not unreasonable and there is a risk that the employer will:
• take disciplinary or other action against the employee; or
• continue to require the employee to monitor, read, or respond to contact (or attempted contact) despite the employee’s refusal to do so.[viii]

The FWC has discretion to make any order it considers appropriate (other than require the payment of a pecuniary penalty) to address the relevant issue.[ix] Failure to comply with a section 333P order will attract the risk of pecuniary penalties.[x]

Impact on the modern awards

The FWC is required to insert a right to disconnect term into all modern awards by 26 August 2024 (the Model Term).[xi]

The Model Term will address how the right to disconnect interacts with terms of the modern award that could be seen as contradictory to it. In particular, the Model Term currently proposes to address ambiguities regarding:

• contact (or attempted contact) to attend work where a standby allowance is being paid;
• notification of emergency roster changes on 48 hours’ notice or less; and
• notification of a recall to work.[xii]

The Model Term will be adjusted to suit each modern award (e.g. not all of the modern awards contain a standby allowance).[xiii]

What will the right to disconnect mean in practice for employers?

The right to disconnect will likely make it a lot harder and riskier for employers to take disciplinary action against employees for failures involving out-of-hours communications.

An employee can try to disrupt disciplinary processes by seeking a section 333P order to prevent any disciplinary action, including the termination of their employment.

For unfair dismissal claims, an employer will likely have difficulty proving that there was a valid reason for a termination where:

• the reason for termination concerned a failure by the employee to monitor, read, or respond to out-of-hours contact (or attempted contact); and
• the employee’s refusal to do so was not unreasonable under section 333M of the Fair Work Act.

The right to disconnect will also be a workplace right for the purposes of the Fair Work Act’s general protections provisions.[xiv] It means that an employer will not be able to take adverse action against an employee (such as terminating their employment) because the employee:

• has the right to disconnect;
• has (or has not) exercised the right to disconnect; or
• proposes (or proposed not to), or has at any time proposed (or proposed not to), exercise the right to disconnect.[xv]

Similarly, an employer also cannot take adverse action against an employee to prevent the exercise of the right to disconnect.[xvi]

These added complications means that it is highly recommended that employers first seek legal advice prior to taking any disciplinary action against employees for failures involving out-of-hours communications.

Disciplinary action is still possible, but employers will need to tread carefully to ensure that it is done right.

Where out-of-hours contact is crucial to the business, employers may need to consider additional compensation for out-of-hours work (such as a standby allowance or the payment of overtime) to help strengthen their grounds against the right to disconnect in respect of their more junior employees.

A workplace policy may also help reduce the risk of conflict between management and employees by outlining the employer’s expectations regarding the right to disconnect.  

If you have any questions about how the right to disconnect may affect your business, please contact Tony Smetana or Megan Flower at HLS Legal on (08) 9322 5202.

This article is intended to be informative only and does not constitute legal advice. If you are concerned about your individual circumstances, please contact a lawyer.

[i] See definition of “small business employer” in section 23 of the Fair Work Act 2009 (Cth).

[ii] Fair Work Act 2009 (Cth), Sch 1, Div 5A, item 111D.

[iii] Fair Work Act 2009 (Cth), s 333M(3).

[iv] Fair Work Act 2009 (Cth), s 333M(5).

[v] Fair Work Act 2009 (Cth), s 333N(1).

[vi] Fair Work Act 2009 (Cth), s 333N(2).

[vii] Fair Work Act 2009 (Cth), s 333N(3).

[viii] Fair Work Act 2009 (Cth), s 333P(1).

[ix] Fair Work Act 2009 (Cth), s 333P(2).

[x] Fair Work Act 2009 (Cth), s 333Q.

[xi] Fair Work Act 2009 (Cth), s 149F and Sch 1, Div 5A, item 111C.

[xii] Variation of modern awards to include a right to disconnect term [2024] FWC 1818 at [9].

[xiii] Variation of modern awards to include a right to disconnect term [2024] FWC 1818 at [9].

[xiv] Fair Work Act 2009 (Cth), s 333M(4).

[xv] Fair Work Act 2009 (Cth), s 340(1)(a).

[xvi] Fair Work Act 2009 (Cth), s 340(1)(b).