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On 8 February 2024, the Senate passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Bill) following a series of amendments proposed by Greens and Independent Senators.

Notably, the Government agreed to include amendments to provide employees with a “right to disconnect” from work. This new right is aimed at preventing employees from being punished for refusing to take work calls or answer work emails outside of their usual working hours, unless the refusal is unreasonable.

What is an “unreasonable” refusal?

Various factors will be considered to determine whether an employee’s refusal is unreasonable, including:

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

It is expected that contact during an emergency or to change conditions of work (such as work location or hours) will be considered reasonable.

Disputes about the right to disconnect

If a dispute arises, the employee and employer must first attempt to resolve the dispute at the workplace level.

If the dispute is unresolved, either party can apply to the Fair Work Commission (FWC) for:

  • an order requiring the employer to cease unreasonable out-of-hours contact; or

  • the FWC to otherwise deal with the dispute.

If an employee has unreasonably refused out-of-hours contact, the FWC can make any order it considers appropriate to prevent the employee from continuing to do so.

If the FWC is satisfied the employee’s refusal is not unreasonable, the FWC can make orders to:

  • prevent the employer from taking disciplinary or other action against the employee; and/or
  • prevent the employer from continuing to require the employee to monitor, read or respond to out-of-hours contact.

Employers or employees who contravene an FWC order could face financial penalties.

The “right to disconnect” FW Act amendments will likely commence 6 months after the Bill receives Royal Assent (or 12 months for small business employers).

In the meantime, we recommend employers review their employment contracts and workplace policies/procedures to ensure consistency with the new laws. Employers should update these documents to place themselves in a better position to establish that out-of-hours contact is not “unreasonable”.

If you would like more information about these changes, please contact our experienced Employment and Workplace Relations team for assistance at [email protected] or 8414 3400.