The Fair Work Legislation Amendment (Closing Loopholes)
Act 2024 includes a new “right” for employees to “disconnect”. The amendments introduced an employee right
to disconnect into the Fair Work Act 2009 (FW Act) which makes clear that
employees are not required to monitor, read, or respond to employer or
work-related contract out of hours, unless refusing to do so is unreasonable.
The new right is in effect a right to “refuse” or “ignore”. These changes include the following
- The
new right allows an employee to refuse to monitor, read or respond to
contact or attempted contact from their employer outside of their
working hours.
- This
right also extends to contact from a third-party contact, such as a
client or customer.
- This
includes monitoring a phone or email and responding to calls, texts or
emails etc.
- This
does not prevent an employer or a third party ringing an employee,
texting them or sending an email outside of working hours.
- The
right to refuse cannot be exercised if the refusal is unreasonable and
the legislation provides guidance on what might affect this test.
- The
right operates for the purposes of the adverse action / General
Protections provisions of the FW Act.
- The
laws apply to all employees covered by the Fair Work System including
award and enterprise agreement free employees (subject to when they
commence).
- The
Fair Work Commission is empowered to deal with disputes about the new
right.
- The
Fair Work Commission will have a ‘test case’ this year to include a
clause in all modern awards dealing with this new right.
This guide is intended to help employers navigate these
changes and offer practical advice for complying with new obligations. It is important that employers are familiarised
with these changes. The changes will affect
a wide range of businesses across different sectors.
