On 26 August 2024, employees will have a right to disconnect protected by the Fair Work Act 2009 (Cth) (FW Act).

An employee will be entitled to refuse contact or attempted contact from their employer (or from a third party where the contact or attempted contact relates to their work) outside the employee’s working hours.

The Fair Work Commission will be able to deal with disputes between an employer and an employee about this right to disconnect, including by making orders to stop an employee from refusing contact or to stop an employer from taking certain actions.

The employee’s right to refuse contact will not apply if refusal is unreasonable. This will depend on such factors as:

• the reason for the contact or attempted contact;
• how the contact or attempted contact is made, and the level of disruption the contact or attempted contact causes the employee;
• the extent to which the employee is compensated (in both a monetary and non-monetary sense) to remain available to perform work during the period in which the contact or attempted 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 the employee’s level of responsibility; and
• the employee’s personal circumstances (including family or caring responsibilities).

The right to refuse will be unreasonable if the contact is required under other laws.

This right to disconnect will be added to the workplace rights that form part of the FW Act general protections.

Employers will need to review employment contracts and policies to make it clear if the employment compensation package is designed to provide redress for out-of-hours contact with employees. The new right will also have implications for remote flexible work arrangements.

Correction: In last week’s bulletin, we stated that the positive obligation on employers to offer conversion to eligible casual employees remains unchanged. In fact, this will cease to operate on 26 August 2024 (26 February 2025 for small business employers).