- Published
The Closing Loopholes Act No. 2, which introduces a “right to disconnect” for employees, has passed parliament and comes in to effect on 26th August 2024. This means employees will soon have the right to disconnect from attempted contact by employers after working hours.
This update provides key information to help employers understand and plan for the new rules.
What is the "Right to Disconnect"?
The “right to disconnect” refers to the new legal entitlement that empowers employees to refuse to read or respond to contact or attempted contact by employers or third parties about work outside of the employees’ working hours, provided the refusal is not unreasonable.
As outlined in the Fair Work Act 2009 (Cth), employees will have the freedom to disregard phone calls, emails, text messages, and other work-related communications outside their designated working hours.
It’s important to note that while the law does not prohibit employers from sending emails and communicating after working hours, it serves as a safeguard for employees who choose not to engage with unreasonable attempts at contact by their employer.
What contact is considered reasonable?
This is going to vary between industries and role types, however, the new legislation takes into consideration:
- the nature of the employee’s role and level of responsibility;
- the reason for contact or attempted contact and how it is made;
- if the employee is compensated to perform work outside of normal hours;
- the mode of contact and degree of disruption this causes;
- the employee’s personal circumstances, including family or caring responsibilities.
Exemptions
Employers in small businesses (with fewer than 15 employees) will be exempt from these provisions for a period of 12 months after the commencement of the new laws (applies to small business employers on 26 August 2025).
Exemptions also apply to contact matters under Commonwealth, State or Territory law involving Australia’s defence, national security or operations of the Australian federal police.
When does the law change?
The new laws will come in to effect on 25 August 2024.
For small businesses with fewer than 15 employees, the laws apply from 26 August 2025 (12 month exemption applies).
How will the "Right to Disconnect" be Enforced?
The right to disconnect applies automatically on the applicable date listed above.
It should be noted that an employer will not be in breach of the new Right to Disconnect provisions simply by contacting an employee outside of work hours. They would be in breach if they terminated or took other adverse action against an employee who reasonably refused to respond to out of hours communications.
Disputes
Where there is a dispute about communication outside of work hours, the first step should be for the employer and employee to have a discussion and try to resolve the dispute within the workplace.
If attempts to resolve the dispute through workplace discussions prove unsuccessful, either the employer or the employee will have the option to escalate the matter to the Fair Work Commission (Commission). The Commission will establish procedures for handling disputes.
Stop Orders
Where a dispute is raised with The Commission, it will have the formal authority to issue various Stop Orders:
- If the employee’s refusal to respond to contact is deemed unreasonable, the Commission can issue an order mandating the employee to cease the refusal.
- If the employee’s refusal is considered reasonable, the Commission can:
- Instruct the employer to discontinue the requirement for the employee to respond to that specific contact; and/or
- Direct the employer not to take disciplinary action against the employee based on the reasonable refusal.
It’s important to note that violating the Commission’s orders carries the risk of a civil penalty, with potential fines of up to $18,780 for each contravention.
Actions for Employers
The introduction of the right to disconnect on the 26th of August 2024 comes with significant adjustments to be made by employers.
Here are important the top considerations employers should be actioning now:
- Use this time (prior to 26 August) to prepare and adapt to their workplace policies and practices accordingly;
- Update employment contracts and position descriptions to include provisions about reasonable out of hours contact, noting that different clauses will be needed for different employees;
- Inform HR, managers and employees of the new measures:
- Educate HR teams on the new rules and how to handle issues;
- Educate managers on respecting boundaries and legal implications;
- Educate employees on their rights and the measures the business is taking to support those rights.
- Develop clear policies around workplace communication outside of agreed working hours, including respecting personal time;
- Encourage employees to schedule emails and tasks during work hours to help minimise after-hours disruptions.
The Commission will be publishing guidelines on the operation of these provisions. Employers should review these guidelines carefully because they will provide an insight into how the Commission might distinguish between reasonable and unreasonable refusals to respond to contact.
Where to Get Help
This new law introduces more significant changes for employers, and we encourage all businesses to seek advice about how this will impact them.
If you would like advice about how this change will affect your business or would like to understand how we can support your compliance and risk mitigation efforts, Edwards HR are more than happy to help – please contact our team on 07 3568 0866.
You can read Edwards HR’s other Quick Guides and employer updates on our website: https://www.edwardshr.com.au/latest-news/
For more information about the changes, you can view updates on the Fair Work Ombudsman website here: https://www.fairwork.gov.au/
You can also visit the Fair Work Commission’s website: The Closing Loopholes Acts – what’s changing: https://www.fwc.gov.au/about-us/closing-loopholes-acts-whats-changing
Stay up to date with all the upcoming changes via our LinkedIn Newsletter below.
For more guidance about this update, or to find out how Edwards HR can support your business, contact our team today on 07 3568 0866.
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