Explainer: What the “right to disconnect” means for businesses and workers

Australian workplaces and employees are only a few steps away from a legal “right to disconnect”, allowing workers to mute their phones and shut off their laptops outside of working hours.

Independent Senator David Pocock has signaled he will support the federal government’s second Closing Loopholes package, including the “right to disconnect” amendment put forward by Greens Senator Barbara Pocock.

With that Senate crossbench support, the back half of Labor’s contentious industrial relations reform package, and new ‘tune out’ rules for workers, are very close to becoming law.

Here’s what business owners and workers need to know about the “right to disconnect” rules being proposed.

How will the right to disconnect work?

The proposed legislation does not outright ban employers from contacting workers out of hours.

Rather, it says that an employee may refuse to “monitor, read or respond to contact, or attempted contact, from an employer [or a related third party] outside of the employee’s working hours unless the refusal is unreasonable”.

It leaves a significant degree of flexibility about what is “unreasonable”, forcing bosses, employees, and the Fair Work Commission (FWC) to consider a workplace’s specific circumstances.

According to the proposed legislation, it may be “unreasonable” for an employee to refuse out-of-hours contact based on the following factors:

• The reason for out-of-hours contact
• How the contact is made
• The level of disruption to the employee
• The extent to which an employee is compensated, including whether they receive an on-call allowance or are paid handsomely for working outside of ordinary hours
• Any non-monetary compensation the employee may receive, on top of their wage
• The nature of the employee’s role and responsibility
• The caring responsibilities of the employee

What kind of contact is OK?

In broad strokes, the proposed legislation would protect entry-level employees from responding to emails around the clock.

However, the list of mitigating factors will give bosses some wriggle room.

As the worker’s role and responsibility must be taken into account, the proposed legislation suggests that big jobs come with bigger after-hours expectations.

The legislation would also protect employers offering a casual worker shifts outside of their already-rostered hours, and bosses who need to contact employees in exceptional out-of-hours circumstances will be free to do so.

And the consideration of non-monetary compensation may also cover startups, where founding teams are expected to funnel extraordinary hours and ‘sweat equity’ into a new venture.

How will disputes work?

If an employee refuses to read or respond to messages outside of their working hours, the worker and the employer must consider the factors listed above and come to a resolution at the workplace level.

If that fails, a party in the dispute can bring it to the FWC, which will be empowered to enforce stop orders.

These orders can stop:

• the employee from “unreasonably” refusing out-of-hours contact,
• the employer from contacting a worker out-of-hours,
• the employer from taking disciplinary against the employee, due to the employer’s belief that the refusal is unreasonable.

On top of the stop orders, the proposed legislation says the FWC “may make any order it considers appropriate” to prevent an employee’s “unreasonable” refusal, or to stop an employer’s adverse action against the worker.

What about fines?

The legislation does not propose the ability for the FWC to impose direct fines against either the employee or employer.

But if a party subject to a FWC order contravenes that order, civil penalties may apply.

In short: a boss or worker will need to go directly against an FWC order before fines are handed out.

As for the value of those fines? The proposed legislation seeks a maximum of 60 penalty units, which is currently valued at $18,780.

Crucially, Senator David Pocock says small businesses will be carved out of the civil penalty provisions, shielding them from the harshest financial penalties.

Can the FWC reject disputes?

Yes.

The FWC has the power to knock back “frivolous or vexatious” applications for an FWC order, where either a workplace or employee is obviously acting in bad faith.

It can also reject claims where the matters relate to:

• National defence and security,
• Covert operations, like those undertaken by the Australian Federal Police (AFP),
• Existing or future international operations by the AFP.

What is the legal basis for the right to disconnect?

The proposal put forward by Senator Pocock seeks a change to the Fair Work Act 2009, ensuring modern awards include a right to disconnect term.

When the amendment commences, new modern awards must be written with a right to disconnect term, covering both workers and employers.

The FWC will be tasked with amending modern awards that already exist or will exist when the right to disconnect legislation comes into effect.

“However, a modern award is not invalid on or after commencement only because it does not include a right to disconnect term,” the proposed legislation says.

What about non-award workers?

If the enterprise agreement includes terms that are more favourable to the employee than the rights proposed by the bill, then the original rights remain in place.

Are there any other exclusions?

Actions made under workplace health and safety rules are permitted, even if they would otherwise violate a stop order.

In addition, contact will not be “unreasonable” if the “contact or attempted contact is required under a law of the Commonwealth, a State or a Territory”.

What other assistance is on the way for employers and employees?

The proposal says the FWC must make written guidelines to help workplaces understand the changes, giving extra clarity to employers.

When will the right to disconnect begin?

The right to disconnect, and the rules that come with it, will begin six months and one day after the legislation receives royal assent.

But small businesses — defined by the Fair Work Act 2009 as an employer with fewer than 15 employees — will be shielded from the amendments for an extra 12 months.

That will effectively give small employers 18 months to prepare for the change after the legislation passes in both houses.