Blog

By Tali Miller

As of today, 26 August 2024, the Right to Disconnect laws are being introduced to the Fair Work Act 2009. This landmark change grants eligible employees the right to disengage from work outside of their regular working hours, placing new obligations on employers to respect these boundaries. For small business employers, these changes will take effect next year, 26 August 2025.

The Right to Disconnect law provides employees with the autonomy to refuse work-related contact outside their established working hours. This includes the right to disregard communications from employers or third parties unless responding is deemed reasonable under specific circumstances. Importantly, this right encompasses both direct communication and any attempts at contact. non-compliance with the Fair Work Commission’s orders regarding the right to disconnect may lead to significant penalties. Employers found in contravention of a Commission order could face penalties of up to $18,780 for an individual or $93,900 for a body corporate per contravention.

There are certain factors that need to be considered when determining whether an employee’s refusal to engage is unreasonable. These include:

• The reason for the contact.
• The method and disruptive nature of the contact.
• Compensation or additional payment provided to the employee for being available or working extra hours.
• The employee’s role and level of responsibility within the business.
• The employee’s personal circumstances, including family or caregiving responsibilities.

Importantly, if the contact or attempted contact is legally required, it will be unreasonable for an employee to refuse to respond.

While the Right to Disconnect empowers employees to protect their personal time, it does not completely prohibit employers from contacting their employees outside of working hours. Employers may still reach out to employees for work-related matters; however, the employee has the right to choose whether to respond outside their scheduled hours, unless there is a compelling reason requiring their immediate attention. Similarly, the law does not prevent employees from contacting each other, even across different time zones. The key focus of the law is to ensure that employees are not obligated to respond to work-related communications during their personal time unless it is reasonable to expect them to do so.

Following this change, all modern awards must incorporate a Right to Disconnect clause. These clauses will provide industry-specific guidance on how these new rights apply, ensuring that the rules are effectively tailored to different sectors.

To align with these changes, employers must review and update their workplace policies. Clear communication with employees regarding their rights under this new law is essential. Additionally, employers should be prepared to integrate any industry-specific variations into their operational practices to ensure full compliance.

If you have concerns about how these new laws might affect your business operations or employee relations, please contact Kingston Lawyers at 03 9585 6455 to talk to one of our team members about your options.