Overview of The Right to Disconnect for the Hire Industry

From 26 August 2024, The Fair Work Act 2009 (Fw Act) And Modern Awards Had Introduced a “Right To Disconnect” for Employees of Businesses with 15 or More Employees. For Employees of Small Businesses, the Right to Disconnect Does Not Commence Until 26 August 2025.

SECTION 333M(1) OF THE FW ACT DEFINES this new employee right as “refusing to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable”.

Disputes over right to disconnect and employee refusals are to be dealt with by the Fair Work Commission (FWC). If arbitrating a dispute, the FWC will need to decide whether an employee’s refusal is “unreasonable”.

Section 333M(3) of the FW Act provides a list of non-exhaustive factors that must be taken into account when determining whether an employee refusal is unreasonable:

1. the reason for the contact or attempted contact;
2. how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
3. the extent to which the employee is compensated: to remain available to perform work during the period in which the contact or attempted contact is made; or for working additional hours outside of the employee’s ordinary hours of work;
4. the nature of the employee’s role and the employee’s level of responsibility; and
5. the employee’s personal circumstances (including family or caring responsibilities).

The right to disconnect provisions in modern awards may go further than the FW Act and describe additional circumstances where an employee’s refusal might be unreasonable, taking into account the narrower occupational and industry factors that are addressed by that particular award.

Dispute process and the role of the Fair Work Commission

Any dispute about out-of-hours contact should first be held at the workplace level between the employer and the employee.

If the dispute cannot be resolved at the workplace level, either party can apply to the FWC for a determination on whether the employee’s refusal is unreasonable.

At the FWC, the parties will likely be directed to attend a conciliation to explore resolution. If the dispute cannot be resolved voluntarily, the FWC will arbitrate the dispute through a hearing process, which involves the tendering of evidence and delivery of legal submissions.

It is important to note that the FWC cannot award any compensation to an employee even if the employee ultimately succeeds in a right to disconnect dispute.

Practical Tips

If we look at the list of factors prescribed in section 333M(3) of the Fair Work Act 2009 (Cth), there are steps that employers can take to strengthen their legal position and reduce the risk of a dispute:

1. Being transparent about the nature of the role and the requirement for out of hours contact in employment documentation, which may include job advertisements, recruitment briefs, employment agreements, position descriptions and workplace policies.
2. Being as descriptive as possible on how out of hours contact might occur and the frequency of such occurrence.
3. Employment contracts should specify how the employee will be compensated for out-of-hours contact. For example, using a salary set off clause for salaried employees, or payment of standby/recall allowance for hourly-rate employees.
4. Keep track of employees’ personal circumstances and conduct forward planning for update of employment contracts and rosters.
5. In the event of a dispute, seek legal advice. A right to disconnect dispute may lead to a dispute over whether an employer has breached the general protections provisions in the Fair Work Act 2009 (Cth).

Outlook for the Future

As we approach the next Federal election in May 2025, workplace relations and industrial laws are expected to be a key policy-battleground between the two major political parties.

The opposition leader Peter Dutton has gone on the record and committed to repealing these right to disconnect laws if the LNP were to win the election.

Until then, businesses should operate with knowledge that these laws exist and could be harnessed by employees and/or unions for their own purposes.

For questions about HR Legislation, contact MST Lawyers through the HRIA member portal.