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What is the right to disconnect?

A newly established workplace right in the world of work is the ‘right to disconnect’.  The right to disconnect is essentially a right by an employee to refuse contact outside of regular working hours provided that the refusal is reasonable.  

When does the right to disconnect commence?

The right to disconnect takes effect on 26 August 2024 and on 26 August 2025 for small businesses.  

Understanding ‘Contact’

‘Contact’ may be from other staff members (such as the employee’s manager) or stakeholders such as suppliers, contractors or third parties.  Whilst an employee will have the right to refuse contact (including contact via phone, text message and/or email) the employer can still make contact.  To this end, the right to disconnect does not prevent an employer from making the contact in the first place.  Rather, the key question is whether any refusal of contact by an employee is reasonable.  

When will contact be reasonable?

Given that this is a new provision, it is not quite clear at this early stage which specific cases will constitute unreasonable refusal of contact by an employee.  What we do have is guidance as to the factors that will inform each particular case.  These include:  

• The reason for the contact in the first place
• The nature of the contact (ie: how contact was made)
• The level of disruption to the employee
• Seniority and scope of the employee’s role (such as the need to be available for contact outside of regular hours across time zones)
• Compensation already payable to the relevant employee to remain available
• Relevant family and/or personal circumstances

What can happen if there is a dispute about the right to disconnect?

In the first instance, it will be necessary for the parties to attempt to resolve any dispute about the right to disconnect at the workplace level.  This is a common first step in dispute resolution provisions under an enterprise agreement and/or local policy on grievance management and resolution.  In the event that discussions between the employer and employee are unable to reach a workable solution, then the Fair Work Commission can intervene and make ‘Stop Orders’.  These include an order that the employer stop requiring an employee to monitor/read/respond to contact or in the case of an employee, that the employee stop unreasonably refusing to monitor/read/respond to contact.  

Other relevant points to note about the right to disconnect

Adverse action by an employer as a result of an employee exercising their right to disconnect will also be prohibited under the Fair Work Act (Cth) 2009.  Modern Awards are also in the process of being varied to include a right to disconnect clause.  

What can HR do now to prepare for the right to disconnect?

There are many HR related activities that you can engage in now to ensure that you and your organisation are best placed to operate with this newly established right.  These include:

• Reviewing your existing contract templates – particularly terms in relation to ‘hours of work’.  It might be time to have these refreshed so as to best ensure that they meet your business requirements.
• Updating your position descriptions to include expectations regarding any out of hours contact that may be required in a given job role(s).
•  If you are currently recruiting to vacant roles within your business – especially Executive and/or more senior roles – it would be prudent to ensure that your recruitment materials reference any need for out of hours contact.  This would apply to recruitment advertising and role prospectus documents as well as briefing your external recruitment partners accordingly.
• Checking that relevant HR policies have been updated to accurately reflect any broad organisational requirement regarding out of hours contact that may apply – such as in your Employee Handbook, Code of Conduct or Workplace Security policy documents.
• Make sure that your People and Culture team conduct briefings with key stakeholders on this important new workplace right.  This could be as simple as holding an information session at a senior leadership team meeting for managers and/or a ‘lunch and learn’ session for all staff.
• Consider whether it is necessary for your HR Manager or Executive Director People and Culture to prepare a board paper for your Directors that summarises this new right, the implications for your business, any risks, challenges and mitigation proposals.  In some cases, it may also be appropriate for a more ‘deep dive’ approach that includes this topic as an agenda item at the next people and culture board sub-committee meeting.
• Keep an eye on forthcoming amendments to Modern Awards which will shortly be updated by the Fair Work Commission to include a Right to Disconnect clause.  You can subscribe to updates from the Fair Work Commission on the Modern Award(s) relevant to your organisation.
• Start thinking (now) about the right to disconnect and how this might form part of your enterprise bargaining negotiation process going forward.  Keep an eye on developments in your sector as to how other employers may be articulating right to disconnect provisions in industrial instruments.  Be sure to also consider the right to disconnect and how it may impact other associated clauses in your EBA too – such as hours of work, overtime and allowances.  

Useful resources 

Statement from the Fair Work Commission:
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc649.pdf

Modern Awards and the ‘Right to disconnect’: 
https://www.fwc.gov.au/hearings-decisions/major-cases/variation-modern-awards-include-right-disconnect

Contact us today to best ensure that you understand the new ‘right to disconnect’ and the industrial implications of this workplace right.  You can also read more on this page.