By Paul Moorhouse -
Snapshot
- For the first time in Australian labour law, a ‘right to disconnect’ has been introduced.
- This new right has received significant media attention in circumstances where the increasing trend of work extending into personal life is seen as an important social issue.
- While courts are yet to apply the new right, claims will revolve around whether an employee’s refusal to be contacted or respond to contact is ‘unreasonable’.
The Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024, which recently received Royal Assent, makes a number of significant changes to the Fair Work Act 2009 (Cth), some of which were discussed in a recent Employment Law Legal Update. One of those changes is the introduction, for the first time in Australian labour law, of a ‘right to disconnect’. Once the right to disconnect provisions commence operation:
- Employees will have a right to disconnect from work-related communications outside of working hours, unless an employee’s refusal to be contacted or respond to contact is unreasonable;
- the Fair Work Commission (‘FWC’) will be able to deal with disputes between an employer and an employee about the right to disconnect; and
- all modern awards will have a right to disconnect term.
The new law does not prevent employers from attempting to contact employees outside of working hours. Rather, it protects employees from having to monitor for or respond to such contact, unless it would be unreasonable for the employee to refuse to do so. Where an employee does exercise the right to refuse to be contacted or respond to contact, an employer will not be able to dismiss the employee or take other ‘adverse actions’ because the employee has exercised that right.
