A new rule has come into effect in Australia giving employees a right to disconnect outside their work hours. The rule currently only applies to non-small employers but will extend to small employers by 26 August 2025. The rule has come into place as part of amendments to the Fair Work Act 2009.
In the digital age, employees are more contactable than ever. When the pandemic enforced “work from home” periods workplaces became increasingly virtual and employees became incredibly contactable. Even as we have transitioned back to working in offices, email, mobiles, Zoom and Teams have meant that availability creep is affecting employees in lots of different roles.
What is the rule?
Employees of non-small business employers (generally an employer with 15 or more employees) have the right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours, unless doing so is unreasonable. This includes contact (or attempted contact) from an employer or a third party.
It does not prevent employers from contacting their workers after hours, but it does provide rights employees not to respond to it unless their refusal would be unreasonable.
Why has the rule been implemented?
There had been reports of workers doing an excessive amount of overtime and increasing stress and anxiety about the need to be contactable. Similar rules have been implemented in more than 20 countries with various amounts of success.
It seems the rule is designed to give employees the confidence to not answer work calls or emails outside of their pair or rostered hours, where reasonable.
How does it work?
The legislation requires the Fair Work Commission (FWC) to provide guidelines regarding the new rules. However, the FWC has not yet issued those guidelines. Instead, it has expressed the intention to issue them after resolving some disputes related to the new entitlement.
Initially, employees and employers are expected to try and resolve disputes at a workplace level. If disputes cannot be resolved in the workplace, then applications can be made to FWC and there are financial penalties that can be issued.
It is a very broad rule with a lot of scope for interpretation. We are going to have to wait and see what comes of some of the initial test cases to see how the rules are implemented at a practical level.
Fair Work has published examples on their website of what they consider to be reasonable and unreasonable attempts to contact employees, as well as reasonable and unreasonable attempts to ignore contact from employers. The examples are narrow and we will need more guidance going forward.
What should you do now?
With the new rules being implemented, employers should be looking to clearly communicate to their employees what is and isn’t expected, particularly with those employees who are contacted outside of hours.
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