March 2024
New legislative bill passed permitting employees to refuse to work after hours
A new legislative bill passed by Parliament will grant employees the right to disconnect. The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 has passed Parliament and will grant employees the right to disconnect after hours.
Takeaways
- Employees will have a right to ‘switch off’ after work hours and the right to refuse to monitor, read or respond to contact after work.
- There are parameters around the refusal, and consideration is to be given to circumstances that are unreasonable for an employee to refuse.
- Employers should beware that if they fail to respect the after-hours switch off employees may face civil penalties.
- The Fair Work Commission may put in place, at the request of one party, a ‘stop order’ against the other party to stop making contact or refusing to respond to contact.
The New Law
Under the new right to disconnect legislation an employee may refuse to monitor, read or respond to contact (or attempted contact) from their employer or a third party outside of their working hours, unless the refusal is unreasonable. It will be unreasonable to refuse contact if this is required under a law of the Commonwealth, State or Territory.
The right will apply to emails, texts, calls, and messages on platforms such as MS Teams and WeChat.
The new right does not stop employers from sending emails to employees outside of work hours. However, it will form one of the “protected attributes” for the purposes of the General Protections regime in the Fair Work Act 2009 (Cth) (FW Act) and aims to protect employees who choose to ‘switch off’ and ignore their employer’s attempts to contact them after hours (where this is not unreasonable) from being subject to any disadvantage.
The law will come into effect 6 months after the royal assent. Small business employers will be exempt from these provisions for a further 12 months following the commencement of the new laws.
Small businesses as defined under the FW Act, a small business employer if it employs fewer than 15 employees at a time.
Factors to consider
Whether the refusal is unreasonable will depend on a range of circumstances specific to the working relationship, including:
- the reason for the contact or attempted contact;
- how the contact is made and the level of disruption it causes the employee;
- the extent to which an employee’s remuneration compensates them to remain available to perform work during the period in which the contact is made or work additional hours outside their ordinary hours of work;
- the nature of the employee’s role and their level of responsibility; and
- their personal circumstances (including family or caring responsibilities).
If a dispute arises between the employee and employer, and this cannot be resolved either party can apply to the Fair Work Commission for a “stop order” against the other. For example, this could be that a stop order be made that their employer stop making unreasonable contact with them and be prevented from taking any action against the employee for refusal. In the same way, an employer will have the ability to apply for an order that an employee stop continuing to unreasonably refuse to monitor, read or respond to attempted contact from their employer.
Breaching a “Stop Order” in relation to the right to disconnect may attract civil penalties under the Fair Work Act. If an employee raises concerns regarding an employer’s continuous contact out of work hours, the latter could receive a fine of $18,000.
Employers should start to consider how they can update their existing work practices and policies and provide training to managers on the new rights and methods of dealing with out-of-hours contact. Considering the reasonable expectations of employers, in light of their relevant roles should be discussed with employees where there is an expectation to be connected to an extent.
Contact Us
Do you need advice on your rights and available protections under employment legislation, contact us today at (02) 9189 5288
Craig Higginbotham and Nicole Sarraf
12 March 2024
