Amendments to the Fair Work Act 2009 brought about by the Fair Work Amendment (Right to Disconnect) Bill 2023 will mean that from 26 August 2024, employees in businesses which employ more than 15 employees (non-small businesses) will have the right to refuse unreasonable contact from their employers outside designated working hours.
The same right will extend from 26 August 2025 to employees of businesses which employ less than 15 employees (small businesses).
What is the 'right to disconnect'?
The right to disconnect will be contained in section 64A of the Fair Work Act, providing that:
- An employer must not contact an employee outside of the employee's hours of work, including during periods of leave, unless:
(a) the reason for the contact is an emergency or a genuine welfare matter, or
(b) the employee is in receipt of an availability allowance for the period during which the contact is made.
- An employee is not required to monitor, read or respond to emails, telephone calls or any other kind of communication from an employer outside of the employee's hours of work, including during periods of leave, unless the employee is in receipt of an availability allowance for the period during which the communication is made.
What is the scope of the right?
The Fair Work Ombudsman has published the following an opinion which suggests the changes merely represent a prohibition on employment-related contact outside business hours that is 'unreasonable'.
"Employees will have the right to refuse contact outside their working hours unless that refusal is unreasonable. This means an employee can refuse to monitor, read or respond to contact from an employer or a third party.
The right also covers attempted contact outside of an employee's working hours.
Several factors must be considered when determining whether an employee's refusal is unreasonable. This includes:
- the reason for the contact
- whether the employee is compensated for being available in the period when contact is made or attempted, or working additional hours outside their ordinary hours of work
- the nature of the employee's role and level of responsibility
- the employee's personal circumstances, including family or caring responsibilities.
Other factors may also apply."
If the opinion is accurate, which in itself is debatable given the terms used in the enabling legislation, the Ombudsman's clarification remains vague.
That said, it seems to suggest that employees whose positions typically involve dealing with urgent situations which, if left unattended, can have significant consequences for customers, clients and/or business transactions or relationships may not have as strong of a right to ignore contact than those whose positions do not.
By the same token, the reasonableness of contact in any position would need to be assessed by the facts of the specific circumstances of attempted or actual contact.
There is little doubt the nature and scope of the right to disconnect will be clarified by way of future legal action.
What is an 'availability allowance'?
Section 64A(3) of the amending legislation defines 'availability allowance' as 'an allowance for being rostered, or otherwise directed by an employer, to remain available to perform work during the period.'
The quantum and calculation of this allowance remains unclear.
Does the allowance entitle an employee to their usual pay rate for period they make themselves available to potentially being contacted by their employers? Is it a proportion of their usual rate, or some other sort of set rate? Is it paid at an overtime rate given it is outside working hours? Is it a reasonable sum set by the employer, or by way of negotiation between the employer and employee?
Significant concerns have already been expresseds in that regard, with business owners foreshadowing that the proposed availability allowance being 'the biggest effect' of the changes 'through contracts and legal action for damages'.
What should an employer do in advance of the changes?
Business owners would be well-advised to take a number of steps in response to the changes, including:
- Adding clauses that contain the new rules into pro-forma employment contracts, and issuing supplementary schedules to existing employees reflecting same,
- Formulating and implementing policies that take the new rules into account, and
- Creating availability schedules where required to ensure the interests of both businesses (in terms of viability) and employees (in terms of work/life balance) are protected.
These steps can enhance clarity, transparency and certainty to workplace arrangements, thereby reducing the likelihood of disputes.
How is the right to disconnect asserted?
The Fair Work Ombudsman suggests that "[d]isputes about an employee's right to disconnect should first be discussed at the workplace level".
However, given the potential power disparity between employers and employees, this may not always be a viable option.
Where and how are disputes resolved?
Disputes which are not resolved at the workplace level can be referred to the Fair Work Commission (FWC).
The FWC has the power to make orders for employers to cease contacting an employee outside working hours or requiring they attend to work-related matters, as well as to cease any disciplinary action arising from an employees related refusal/s.
The importance of work/life balance
For many years, the importance of 'work/life balance' has been at the forefront of workplace culture building and many employers know that exhausted and overworked employees can, in fact, be a liability, making mistakes or creating a burden for co-workers.
Another key factor is the cost of loss of productivity. So, most strive to ensure that employees get appropriate downtime.
Burnout has become a very serious topic of conversation and concern, because stress and mental health related issues can be very costly for business.
In Gallup's State of the Global Workplace 2023 Report, employees in the US and Canada along with East Asia reported the highest levels of stress in the workplace at 52%. Australia and New Zealand had the second-highest rate at 47%.
Many companies spend tens of thousands of dollars a year on "wellbeing" programmes and other initiatives to keep employees healthy.
However, stories of employers who overstep what may be considered reasonable boundaries continue to surface.
Case study: requirement to work 70+ hours per week deemed 'fair and reasonable'
Last year, the legal proceedings between Independent MP for Kooyong in Victoria Dr Monique Ryan, and her former political staffer Sally Rugg was considered an 'important test case' in relation to the meaning of 'fair and reasonable' overtime' in the workplace.
Ms Rugg took the matter to court, claiming she had been terminated from her job for refusing to work in excess of 70 hours a week, including "both days of the weekend" as well as 12-hour days in parliamentary sitting weeks; and eight or nine hours in the office on non-sitting days, with very early morning starts and late night finishes.
Dr Ryan defended the termination on the basis that, "Politicians and their parliamentary staff are paid more than most Australians, and ... the public should expect that we work very hard and prioritise engaging with our constituents."
Federal Court Justice Debra Mortimer agreed with Dr Ryan, dismissing Ms Rugg's application for an injunction to stop the termination, determining that such hours were not unfair given the nature of her position.
In reaching that decision, the Court noted that the Fair Work Act makes clear salaried employees can be expected to work "fair and reasonable overtime", adding that the definition of this concept is unclear and depends primarily on the nature of the work being performed.
The case attracted a great deal of debate, with many arguing that those who choose demanding career positions should be well aware of the expectations involved of these types of roles.
From an employee's perspective, the new right to disconnect goes some way towards ensuring a work/life balance is maintained in even the most demanding of positions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.