This amendment is part of a further suite of changes due to come into effect as part of the Labour Government’s Fair Work Amendment (Closing Loopholes No.2) Bill 2023. For further information about the remainder of these changes, please click here. 

The first reading of the Right to Disconnect Bill contained a somewhat rigid prohibition on employers contacting their employees outside of work unless an exception applied (such as an emergency). The crossbench has successfully negotiated amendments to make the right to disconnect more workable.

Rather than an outright prohibition on employers contacting their employees, the right to disconnect will give employees the right to refuse to monitor or respond to emails and calls or other forms of contact from their employer outside of working hours unless such refusal is ‘unreasonable’.[1]

If an employee feels they have been contacted unreasonably outside of hours, and they are unable to resolve the dispute at the workplace level, the employee may apply to the Fair Work Commission for a stop order.

What After Hours Contact is Reasonable?

Determining how much after hours contact with employees is reasonable is now critical to the right to disconnect.

Factors relevant to what out of hours contact is reasonable are: the reason for contact; the level of contact; compensation; job role and responsibility; and the personal circumstances of the employees. The Fair Work Commission will be releasing further guidelines.

Other factors potentially relevant to the reasonableness of out of hours contact may be whether:

• Out of hours contact is an inherent requirement of the role (for example, within global organisations)
• The contact qualifies as ‘reasonable additional hours’ in accordance with s62 of the FW Act, in particular if the employee’s contract requires them to work reasonable additional hours, and that is factored into their rate of remuneration
• Whether the employee is working under a flexible work arrangement entitling them to perform some personal activities during their work hours (for example, parental activities such as school drop offs).

It should be noted that the right to disconnect may extend to work related contact by third parties, meaning employers will also need to consider if third parties such as clients are engaging in an unreasonable amount of contact with employees after hours.

How Should Employers Prepare for the Right to Disconnect?

It is now important for employers to:

• Assess the needs of their business, and the frequency of out of hours contact that is reasonable in the circumstances of each employee (having regard to the relevant factors cited above). In that respect, the unique nature of particular organisations and employment roles are likely to have a significant bearing on what out of hours contact is reasonable
• Set out their approach to the management of out of hours contact and the right to disconnect in their suite of policies. Template contracts of employment should also be reviewed
• Consider more broadly the recognition of the right to disconnect from a cultural perspective, including whether it poses risks to health and safety, burn out or job satisfaction.

Further information / assistance regarding the issues raised in this article is available from the authors, Nick Duggal, Partner, Georgia Steele, Lawyer or your usual contact at Moray & Agnew.