New employee rights commencing in August 2024 for most employers
One of the changes introduced by the “Closing Loopholes” legislation is known as the “right to disconnect”. This new rule starts on 26 August 2024 for most Australian workplaces. For businesses with 14 employees or less it begins a year later, on 26 August 2025.
The right to disconnect covers all kinds of communication like calls, emails, texts, or messages through apps like Teams. It does not prohibit employers from contacting their workers, nor does it prevent employees from contacting one another. Rather, workers will be able to refuse to monitor, read or respond to contact outside of working hours so long as doing so is not unreasonable.
Reasonableness will be judged on multiple factors, including:
- Why the worker is being contacted;
- How disruptive the contact is;
- Whether the worker gets anything extra for being available or working outside of regular hours, like extra time off or flexible work arrangements;
- What the worker’s job involves;
- The workers personal situation, including family and caring responsibilities; and
- Whether the contact is a pattern of behaviour.
If the contact is needed because of a law (for example, safety issues), then refusing to respond isn’t allowed. Otherwise, reasonableness will be determined on a case-by-case basis.
As part of the right to disconnect, employers will be prohibited from taking adverse action against employees who exercise the workplace right to disconnect. The Fair Work Commission has also been given new powers to arbitrate and make orders regarding the right to disconnect.
All awards will be required to include a ‘right to disconnect term’ by 26 August 2024. The Award variation process is currently underway.
