All employers now subject to employee “right to disconnect”
Whilst it isn’t news that, under amendments to the Fair Work Act 2009 (Cth) (FW Act) and consequent amendments to Modern Awards, from 26 August 2024 employees of larger employers have the new ‘right to disconnect’ outside of work hours… what many small businesses employers don’t realise is that this law will also apply to them from 26 August 2025.
What is a “small business employer”?
A small business employer is an employer with fewer than 15 employees at a particular time.
When counting the number of employees, employees of associated entities of the employer are also included. Casual employees are not included in this headcount unless they are engaged on a regular and systematic basis (but they also have the right to disconnect).
So what is the “right to disconnect”?
Employees have the right to refuse contact outside their working hours unless that refusal is unreasonable. This right means an employee can refuse to monitor, read or respond to contact from an employer or a third party (such as customers, clients, suppliers and related businesses) outside of an employee’s working hours.
Contact is broad and can include in person contact, calls, emails, texts, WhatsApp chats or through other Apps etc.
The right to disconnect is a protected right all employees have under the FW Act. An employee can’t be punished or adversely treated for enforcing a workplace right. Employees are protected from any disciplinary action for reasonably ignoring such emails.
What is “unreasonable”?
When working out whether an employee’s refusal is “unreasonable” other matters may also be considered but the following factors must be considered:
- the reason for the contact
- how the contact is made and how disruptive it is to the employee
- how much the employee is compensated or paid extra for:
- being available to perform work during the period they’re contacted, or
- working additional hours outside their ordinary hours of work
- the employee’s role in the business and level of responsibility
- the employee’s personal circumstances, including family or caring responsibilities.
It will be unreasonable for an employee to refuse to read, monitor or respond if the contact or attempted contact is required by law.
Importantly, employers are not prohibited from initiating contact with employees, but the employee is not obliged to respond unless it is deemed ‘reasonable’ for them to do so.
Senior employees on large salaries will have limited access to this right as their role or remuneration already will likely include ‘reasonable additional hours’. These laws are mainly for the benefit of Award and lower level employees and those who are expected to be available on call without additional compensation.
Disputes
Disputes about an employee’s right to disconnect should first be discussed and resolved at the workplace level (s.333N).
If that isn’t possible, employees or employers can go to the Fair Work Commission (FWC) to deal with a dispute (s.333P).
The FWC can:
- make a stop order
- deal with the dispute in other ways (for example, by holding a conference to try to resolve the dispute), or
- both.
FURTHER INFORMATION
For further information in relation to business succession, estate planning, litigation and dispute resolution or any commercial law matter, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your commercial law needs.
