The Law
Under amendments to the Fair Work Act 2009, employees in Australia are being given a new “right to disconnect” from the workplace outside of normal working hours. Under the new law, employees may refuse contact, including refusing to monitor, read or respond to contact from the employer or a third party outside of working hours unless the refusal would be “unreasonable.”
While “contact” is not defined in the legislation, it is likely to include any form of contact including email, text or social media messages (e.g., WhatsApp) and phone calls.
The law contains a nonexhaustive list of factors that should be considered when determining whether an employee’s refusal is “unreasonable,” including:
- The reason for the contact
- Whether the employee is compensated or paid extra for being available to be contacted to perform work within a specific period or working additional hours outside of their ordinary working hours
- The nature of the employee’s role and level of his or her responsibility
- The employee’s personal situation such as family or caring responsibilities
The law takes effect on August 26, 2024, for employers with 15 or more employees and August 26, 2025, for employers with 14 or fewer employees. The Australian Fair Work Commission has said that it does not intend to issue guidelines on the new requirements before the law takes effect, but it may do so after it has heard disputes on the issue and had a chance to consider the issues for which guidance may be required.
Disputes
The Fair Work Commission generally expects that disputes be handled internally first, through discussion between the employer and employee. If resolution of the dispute is not possible at that level, employees may file a dispute with the Fair Work Commission.
The Commission can take any number of actions, including issuing a stop order to either party, holding a conference to attempt to resolve the dispute, or requesting further information from either party in order to resolve or decide on the dispute.
A Growing Trend
Recognizing a right to disconnect is in line with recent legislation in Australia, which has increasingly focused on respect in the workplace and related employee protections. In 2022, Australia implemented the Respect at Work Act, which strengthened sexual harassment protections for employees. Australia also has Work Health and Safety Regulations requiring employers to minimize psychosocial risks that arise from workplace hazards. Among the recognized risks are excessive job demands, poor support, lack of clarity or control, bullying, inadequate organizational justice, remote or isolated work, harassment, and conflict or poor workplace relationships.
Australia joins a growing list of countries that have recognized a right to disconnect from the workplace. The trend started in France in 2017 and has become increasingly popular in Europe and globally, particularly after the COVID-19 pandemic led to more flexibility in working hours and location for many employers and employees.
Considerations for Employers
In light of the global trend toward recognizing a right to disconnect from the workplace, multinational employers should evaluate out-of-hours contact for employees. Considerations may include (i) general IT and communications habits of employees (e.g., email, text, Teams/Slack, WhatsApp, etc.); (ii) particular business units or levels of employees that may have greater expectations for out-of-hours contact; (iii) pay practices and whether existing compensation is intended to compensate employees for after-hours communication; and (iv) how all of these issues are communicated to new and existing employees.
Pending consideration of these issues, next steps for employers in Australia may include:
- Introducing or revising policies on remote work and working hours
- Training for managers on how to handle out-of-hours contact with employees and/or an employee’s refusal to engage after hours
- Evaluating the internal complaint procedure for employees who dispute or complain about after hours contact, including how the company will consider the above factors in determining whether a refusal is “unreasonable”
- Adding provisions to employment contracts for new hires
- Amending existing agreements with key employees
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