Did you know that full-time workers are the most likely to have worked overtime, with four in five (79%) reported working beyond scheduled hours.
Last Thursday’s amendments to the Fair Work Act through the Legislation Amendment (Closing Loopholes No.2) Bill 2023 makes significant changes to the Fair Work Act. One of the most significant is the so-called, Right to Disconnect. The amendments seek to address the concerns that the boundary between work and free time has been blurred by employees always being on call and expected to answer phone calls and emails after hours.
The changes which commence in 6 months (18 months for small businesses), give employees the right to refuse to read, monitor, or respond to any contact from their employer outside working hours unless the contact is reasonable. This includes contact from clients or others with whom the employee has work relationships with.
For employees and employers, the first step if there is a dispute about the employee’s right to disconnect is to attempt to resolve the issue within the workplace. This is where most issues will likely be resolved.
If that is unsuccessful, the parties can apply to the Fair Work Commission for an order to prevent contact from the employer after hours; order the employee to stop refusing contact; or make other orders regarding the dispute.
The matters that the FWC can consider in determining the reasonableness of the contact or refusal to have contact. These include:
- The nature and level of the employee’s position
- The reason for the contact
- How the contact is made and how disruptive it is
- Whether the position and terms of employment compensate the employee for after hours contact
Employers should also be aware that the right to disconnect is a right for the purposes of the general protection provisions of the Fair Work Act. This may lead to additional claims where an employee alleges that action has been taken against them for refusing contact or making an application to the FWC regarding their right to disconnect.
For employers and employees, it is important to be clear at the start of the employment relationship regarding expectations for contact outside work hours, the frequency and circumstances when it might occur, and what compensation the employee receives for such contact.
This is a new dimension to the employment landscape, and all employers, no matter the industry, should carefully consider their employment arrangements and policies around contact so that everyone in the organisation is aware of the expectations of employers and employees.
Whether you’re an employer or an employee, our experienced employment law team can help you understand your rights, responsibilities, and legal obligations and provide advice on managing workplace issues and disputes.
If you would like to speak to us about how the right to disconnect will affect your business, or another employment matter, contact 02 6331 2911 or email solicitors@kennyspring.com.au.
Angus Edwards | Principal