The Right to Dis­con­nect: What is it? What does it mean for workplaces?

One of the most talked about and debat­ed work­place reforms of recent times is the ​‘right to dis­con­nect’. This right was one of the work­place rela­tions reforms includ­ed in the Clos­ing Loop­holes Bill No. 2 (Bill), passed by the fed­er­al par­lia­ment last week.

Laws con­fer­ring a right to dis­con­nect have been imple­ment­ed in, among oth­er places, France and Italy. It is also com­mon for com­pa­nies in Ger­many to have poli­cies imple­ment­ing such a right for employ­ees. It is a Euro­pean-style labour reform, ensur­ing the demands of work do not unrea­son­ably encroach on the lifestyle or dig­ni­ty of employ­ees. A quin­tes­sen­tial exam­ple of this is the French law that pro­hibits employ­ees from eat­ing lunch at their desk while at work, a com­mon prac­tice in coun­tries such as Aus­tralia and the Unit­ed States. 

The Right to Dis­con­nect in Australia

The right to dis­con­nect actu­al­ly con­sists of two sep­a­rate employ­ee rights, set out in the Bill as follows:

• “An employ­ee may refuse to mon­i­tor, read or respond to con­tact, or attempt­ed con­tact, from an employ­er out­side of the employee’s work­ing hours unless the refusal is unreasonable.”
• “An employ­ee may refuse to mon­i­tor, read or respond to con­tact, or attempt­ed con­tact, from a third par­ty if the con­tact or attempt­ed con­tact relates to their work and is out­side of the employee’s work­ing hours unless the refusal is unreasonable.”

In deter­min­ing whether a refusal by an employ­ee is unrea­son­able, the fol­low­ing mat­ters must be tak­en into account:

1. the rea­son for the con­tact or attempt­ed contact;
2. how the con­tact or attempt­ed con­tact is made and the lev­el of dis­rup­tion the con­tact or attempt­ed con­tact caus­es the employee;
3. the extent to which the employ­ee is compensated:
   • 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;
4. the nature of the employee’s role and the employee’s lev­el of responsibility;
5. the employee’s per­son­al cir­cum­stances (includ­ing fam­i­ly or car­ing responsibilities).

This is not an exhaus­tive list. It does not lim­it the mat­ters that may be tak­en into account in deter­min­ing whether a refusal by the employ­ee is unreasonable. 

The two sep­a­rate rights that com­prise the right to dis­con­nect are work­place rights for the pur­pose of the gen­er­al pro­tec­tions pro­vi­sions of the Fair Work Act 2009 (Cth) (Act). That means it will be pro­hib­it­ed for an employ­er to take adverse action (such as ter­mi­na­tion of employ­ment or demo­tion) against an employ­ee because they exer­cise or pro­pose to exer­cise either of the rights. 

Dis­putes and Orders

If the employ­ee has refused to mon­i­tor, read or respond to con­tact or attempt­ed con­tact and either:

1. the employ­er rea­son­ably believes that the refusal is unrea­son­able; or
2. the employ­er has assert­ed that the refusal is unrea­son­able and the employ­ee rea­son­ably believes the refusal is not unreasonable;

then the dis­pute res­o­lu­tion process in rela­tion to the right to dis­con­nect can be enlivened. 

In the first instance, the par­ties to the dis­pute must attempt to resolve the dis­pute at the work­place lev­el by dis­cus­sions between the parties.

If those dis­cus­sions do not resolve the mat­ter then an appli­ca­tion can be made for the Fair Work Com­mis­sion (FWC) to deal with the mat­ter, includ­ing mak­ing orders for an employ­ee to stop refus­ing con­tact or for employ­ers to stop tak­ing cer­tain actions.

The FWC may make an order it con­sid­ers appro­pri­ate (oth­er than a pecu­niary penal­ty) in either of the fol­low­ing circumstances:

1. an employ­ee has unrea­son­ably refused to mon­i­tor, read or respond to con­tact or attempt­ed con­tact and there is a risk the employ­ee will con­tin­ue to do so;
2. an employee’s refusal to mon­i­tor, read or respond to con­tact or attempt­ed con­tact is not unrea­son­able and there is a risk that the employ­er will:
   • take dis­ci­pli­nary or oth­er action against the employ­ee because of the employer’s belief that the refusal is unrea­son­able; or
   • con­tin­ue to require the employ­ee to mon­i­tor, read or respond to con­tact or attempt­ed con­tact despite the employee’s refusal to do so.

The FWC may also dis­miss an appli­ca­tion for orders if the appli­ca­tion is friv­o­lous or vex­a­tious. In cir­cum­stances where employ­ers con­tend an appli­ca­tion falls in that cat­e­go­ry they can seek the appli­ca­tion be dealt with expe­di­tious­ly and effi­cient­ly and for the deci­sion on the appli­ca­tion to be com­mu­ni­cat­ed to the par­ties in a time­ly way. 

Some Obser­va­tions

The right to dis­con­nect has attract­ed sub­stan­tial inter­est and com­men­tary, much of it crit­i­cal of the reform. Below are some obser­va­tions on the way in which it is like­ly to apply in prac­tice and some mat­ters for employ­ers and employ­ees alike to consider:

1. A refusal by an employ­ee to read, mon­i­tor or respond to con­tact or attempt­ed con­tact must be rea­son­able. This has been over­looked in much of the com­men­tary. It is not an absolute pro­hi­bi­tion on con­tact from an employ­er to an employ­ee out­side work­ing hours. For instance, con­tact to inform an employ­ee of a changed shift or work loca­tion is high­ly unlike­ly to fall with­in the scope of the provision.
2. That said, the prac­ti­cal imple­men­ta­tion of the right to dis­con­nect is like­ly going to pose sub­stan­tial chal­lenges. Dif­fer­ent per­spec­tives or views between employ­ees and employ­ers as to what con­sti­tutes an unrea­son­able refusal of con­tact will undoubt­ed­ly cre­ate ten­sions in some work­places. Employ­ers need to remem­ber that while the process might some­times be frus­trat­ing, adverse action can­not be tak­en against an employ­ee for exer­cis­ing or pur­port­ing to exer­cise the right to dis­con­nect, even if the employ­ee might ulti­mate­ly be wrong as to whether their refusal to respond to out of hours con­tact is unreasonable.
3. The right to dis­con­nect is enlivened when there is con­tact out­side of the employ­ee’s ​‘work­ing hours’. For some occu­pa­tions, par­tic­u­lar­ly pro­fes­sion­als and senior exec­u­tives, there might be a live ques­tion as to what are the ​‘work­ing hours’ for the pur­pose of the right. There isn’t always a clear delin­eation between work­ing and non-work­ing hours, par­tic­u­lar­ly in senior exec­u­tive and pro­fes­sion­al roles. Para­dox­i­cal­ly, it is this very lack of a clear divi­sion between work­ing and non-work­ing time the right to dis­con­nect is seek­ing to address.
4. One of the rights that com­prise the right to dis­con­nect address­es con­tact or attempt­ed con­tact by a third par­ty relat­ed to the work of the employ­ee. This might have a sig­nif­i­cant impact on occu­pa­tions where cus­tomers or clients direct­ly con­tact employ­ees out of work hours. Employ­ers may be mor­ti­fied by the prospect of employ­ees either not respond­ing to con­tact from clients or cus­tomers, or blunt­ly refus­ing to attend to their issue, out of work hours. Employ­ers need to con­sid­er strate­gies for effec­tive­ly bal­anc­ing the need to serve clients with the right to dis­con­nect their staff will have. Com­mu­ni­ca­tion pro­to­cols will be impor­tant. Email sign-offs that set para­me­ters and expec­ta­tions for response to out-of-hours con­tact will like­ly become more common.
5. A fac­tor in deter­min­ing whether a refusal is unrea­son­able is the nature of the employ­ee’s role and lev­el of respon­si­bil­i­ty. For senior exec­u­tives and pro­fes­sion­als this fac­tor may have sig­nif­i­cance, ren­der­ing many refusals unrea­son­able. That said, it is unlike­ly to mean that the cus­tomer or client is always going to be right and that it is, ipso fac­to, unrea­son­able to refuse con­tact from a cus­tomer or client. The men­tal­i­ty of always acced­ing to demands of clients or cus­tomers at any time, even if objec­tive­ly unrea­son­able, may need to be revisited.
6. One way employ­ers may seek to address this issue for client-fac­ing roles is to note in the employ­ment con­tract that client ser­vice is a fun­da­men­tal aspect of the posi­tion, with the employ­ee acknowl­edg­ing that, as part of their role, deal­ing with cus­tomers out­side work­ing hours is required. This would not, of course, over­ride the leg­is­lat­ed right to dis­con­nect, but might assist in an argu­ment on behalf of an employ­er that client con­tact out­side work­ing hours is part of the employ­ee’s role.
7. Much has been made of the role of the FWC in rela­tion to the right to dis­con­nect. The frame­work for the mak­ing of orders by the FWC is sim­i­lar to that pre­vi­ous­ly adopt­ed for orders to stop bul­ly­ing and sex­u­al harass­ment. If the exer­cise of these pow­ers by the FWC is any guide, appli­ca­tions and orders are like­ly to be rel­a­tive­ly rare. Much of the com­men­tary on this aspect of the right to dis­con­nect over­looks the require­ment for the employ­er and employ­ee to try and resolve any dis­pute by dis­cus­sions at the work­place lev­el before tak­ing the dis­pute to the FWC.

Some minor tweaks to the right to dis­con­nect have been fore­shad­owed, includ­ing removal of the prospect of impris­on­ment for a breach of the right by an employ­er. Once finalised and imple­ment­ed the right to dis­con­nect will pose chal­lenges for work­places, but these chal­lenges should be approached sen­si­bly from an informed perspective.