[Australia] Details of employees' new right to disconnect

In 2023, Australia’s Senate Select Committee on Work and Care highlighted the "availability creep" phenomenon, in which employees are increasingly expected to work outside their work hours, accumulating significant unpaid overtime.

To combat this, from August 26, 2024, the Fair Work Act 2009 (Cth) has been amended to include a new employee right to disconnect from work as part of changes from the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. Mondaq reports on the implications and impact of this change.

The change will initially only apply to employees from employers with more than 15 employees. The changes will take effect on August 26, 2025, for small business employers.

The new provisions will protect employees from unreasonable employer contact outside of their ordinary working hours. Under them, employees can refuse to monitor, read or respond to contact from their employer or a third party (such as a supplier or client) about work.

Under the changes, employees who refuse to monitor or respond to out-of-hours calls and emails from their employer will reportedly have legal protections against adverse action for exercising their workplace rights, including protection against disciplinary action or dismissal.

According to Mondaq, it will be unlawful for an employer to take adverse action against an employee for holding, exercising or proposing to exercise their right to disconnect.

Unreasonable refusal 

Whether an employee's refusal is classed as reasonable will reportedly depend on the circumstances of each case. 

Determining factors will include:

• The reason for the contact (or attempted contact)

• How the contact is made and how disruptive it is to the employee

• Whether the employee is compensated for being available to be contacted to perform work within a specific period or work additional hours

• The nature of the employee's role and their level of responsibility within the business

• The employee's personal circumstances, including whether they have family or carer's responsibilities.

Recourse for employees

Employees persistently contacted by their employer or manager after hours may apply to the Fair Work Commission for a 'stop order', similar to the existing stop bullying and stop sexual harassment jurisdictions. These changes will apply in addition to existing protections employees have against working unreasonable hours.

It will reportedly be up to the Commission to consider whether the circumstances in which the contact occurred are unreasonable, how often the employee was contacted, the nature of their role or responsibilities and the employee's personal circumstances before making an order.

The Commission will be able to make a stop order and/or deal with the dispute in other ways such as holding a conference to encourage parties to find a resolution.

Source: Mondaq

(Link via original reporting)

In 2023, Australia’s Senate Select Committee on Work and Care highlighted the "availability creep" phenomenon, in which employees are increasingly expected to work outside their work hours, accumulating significant unpaid overtime.

To combat this, from August 26, 2024, the Fair Work Act 2009 (Cth) has been amended to include a new employee right to disconnect from work as part of changes from the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. Mondaq reports on the implications and impact of this change.

The change will initially only apply to employees from employers with more than 15 employees. The changes will take effect on August 26, 2025, for small business employers.

The new provisions will protect employees from unreasonable employer contact outside of their ordinary working hours. Under them, employees can refuse to monitor, read or respond to contact from their employer or a third party (such as a supplier or client) about work.

Under the changes, employees who refuse to monitor or respond to out-of-hours calls and emails from their employer will reportedly have legal protections against adverse action for exercising their workplace rights, including protection against disciplinary action or dismissal.

According to Mondaq, it will be unlawful for an employer to take adverse action against an employee for holding, exercising or proposing to exercise their right to disconnect.

Unreasonable refusal 

Whether an employee's refusal is classed as reasonable will reportedly depend on the circumstances of each case. 

Determining factors will include:

• The reason for the contact (or attempted contact)

• How the contact is made and how disruptive it is to the employee

• Whether the employee is compensated for being available to be contacted to perform work within a specific period or work additional hours

• The nature of the employee's role and their level of responsibility within the business

• The employee's personal circumstances, including whether they have family or carer's responsibilities.

Recourse for employees

Employees persistently contacted by their employer or manager after hours may apply to the Fair Work Commission for a 'stop order', similar to the existing stop bullying and stop sexual harassment jurisdictions. These changes will apply in addition to existing protections employees have against working unreasonable hours.

It will reportedly be up to the Commission to consider whether the circumstances in which the contact occurred are unreasonable, how often the employee was contacted, the nature of their role or responsibilities and the employee's personal circumstances before making an order.

The Commission will be able to make a stop order and/or deal with the dispute in other ways such as holding a conference to encourage parties to find a resolution.

Source: Mondaq

(Link via original reporting)