The new “right to disconnect” rule was introduced for employees on 26 August 2024. It applies to businesses with 15 or more employees. For employers with less than 15 employees, the right to disconnect will take effect on 26 August 2025.
What is the “Right to Disconnect?”
The Fair Work Act 2009 (Cth) (“the Act”) will now give employees a positive right to refuse to monitor, read or respond to contact, or attempted contact, from their employer or third parties related to work if that contact is outside of the employee’s working hours unless the refusal is found to be unreasonable.
What does this amendment mean for your business?
The “Right to Disconnect” will impact the way your business communicates with its employees outside of work hours. Employees who believe their employer has adversely acted against them because of their “Right to Disconnect” can potentially make a General Protections claim.
When will a “Right to Disconnect” be unreasonable?
An employee’s ‘Right to Disconnect’ will be unreasonable if the contact or attempted contact is required by law. If there is no requirement at law for communication, the following factors are to be considered when deciding whether the employee’s disconnection is ‘unreasonable’:
the reason for the contact or attempted contact,
how the contact is made, and the level of disruption the contact or attempted contact causes the employee,
the extent to which the employee is compensated to remain available to perform work outside of their ordinary hours of work,
the period in which the contact or attempted contact is made or is compensated for working additional hours outside of the employee’s ordinary hours of work,
the nature of the employee’s role and the employee’s level of responsibility, and
the employee’s circumstances, including family or caring responsibilities.
What are your Obligations as an Employer?
There is no prohibition on employers contacting their employees outside of work hours. The right is on the employee to elect to ignore or not respond to the contact outside of their work hours unless the refusal is found to be unreasonable. This right extends to contact from a third party if the contact, or attempted contact, relates to the employee and their work.
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