The change to the Fair Work Act regarding the new right to disconnect began on 26 August 2024 for non-small businesses (15 or more employees) including charities but will apply to all from August next year.
The change means employees have the right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours unless that refusal is unreasonable.
Whether a refusal is unreasonable will depend on the circumstances. The following factors must be considered:
- the reason for the contact
- the nature of the employee’s role and level of responsibility
- the employee’s personal circumstances, including family and caring responsibilities
- how the contact is made and how disruptive it is to the employee; and
- any relevant extra pay or compensation they receive for working additional hours or remaining available to work out of hours
The Fair Work Ombudsman is encouraging employers and employees to talk to each other about after-hours contact and set expectations suited to their specific workplace and the employee’s role.
Next Steps for Employers
There are some steps you can take to manage the impact of the ‘right to disconnect’.
If an employee’s role may require out-of-hours contact, you should ensure that this is set out in their position description and contract of employment. You should also establish protocol for out-of-hours contact to avoid it being deemed unreasonable. This could include protocol on what kind of matters may require out-of-hours contact, appropriate methods for contact and managers with delegated responsibility to make out-of-hours contact.
