From 26 August 2024, Employees of non-small businesses (i.e. over 25 full time employees) have had the express right to disconnect from work recognised within the Fair Work Act 2009, which underpins most employment contracts.
Under the new provisions, employees the right to refuse to monitor, read or respond to contact (or attempted contact) from employers or work related parties outside their scheduled working hours, unless doing so is unreasonable.
A non-exhaustive list of what to consider in relation to whether an employee’s refusal is unreasonable, include:
- the reason for the contact
- how the contact is made and how disruptive it is to the employee, taking into account the employee’s personal and professional circumstances
- 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.
- Other matters may also be considered on a case by case basis.
The new provisions have come as a relief to many employees, but also created uncertainty as to what is or is not reasonable. Although protected by law, many employees have expressed concern about enforcement of the new provisions and protections offered to them if an employer takes a refusal poorly.
The protection provisions fall under the General Protections provisions of the Fair Work Act, meaning that the right to disconnect is a protected workplace right. Disputes regarding the right to disconnect should first be raised at a workplace level, although additional provisions regarding Fair Work Commission adjudication have also been provided for, with potential civil remedies and orders contemplated by that section.
If you have concerns or questions about this new law and how it applies to you, contact us today for an obligation free first discussion about how we can help.