The leftover Loopholes – The right to disconnect and further impediments to bargaining

On Monday, 12 February 2024, Parliament passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill which makes changes to the Fair Work Act 2009 (Cth) (FW Act). The Bill was passed with an amendment put forward by the Greens providing employees with a ‘right to disconnect from work’.

What is the ‘right to disconnect’?

France, Germany, and the UK have, for some time, had legislation designed to limit demand for employees to provide immediate responses to workplace correspondence outside of work hours.

The right to disconnect provides that an employee may refuse to monitor, read or respond to contact from an employer outside of the employee’s working hours unless the refusal is unreasonable. To determine whether an employee’s refusal is unreasonable, the following matters must be taken into account:

• the reason for the contact or attempted contact (although the legislation does not explain how this can be determined if the employee exercises their right not to monitor or read the contact from their employer);
• 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:
  • 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;
• the employee’s personal circumstances (including family or caring responsibilities).

The right to disconnect amendment creates a workplace right within the meaning of Part 3-1 of the FW Act. This means that, if an employer takes, or attempts to take, adverse action (termination, discipline, etc.) against an employee because of their right to disconnect, or their exercise of that right, they will breach the general protections provisions of the FW Act.

The Fair Work Commission (Commission) will be required to incorporate the right to disconnect into Modern Awards.

Impact

Employers should begin to consider the extent to which they can reasonably expect workers to monitor, respond and engage with work outside their working hours on an ongoing basis.

The Commission will be able to deal with disputes about rights to disconnect. Employers and employees will first need to attempt to resolve any disputes at a workplace level. After that, a party will be able to apply to the Commission for orders to resolve the dispute – whether to stop an employee refusing out of hours contact, stop employers attempting to make out of hours contact or to otherwise deal with the dispute. The Commission will be able to make any orders it considers appropriate to resolve the dispute, however it will not have the power to impose pecuniary (monetary) penalties.

The right to disconnect will commence six months after the Bill receives Royal Assent by the Governor-General (12 months for small business employers).

Intractable bargaining determinations

Also of concern for many employers will be the change being made by this Bill to the provisions relating to the resolution of intractable bargaining disputes. As of June last year, the Commission has the power to resolve ‘intractable bargaining disputes’ by making a ‘determination’ (essentially, an enterprise agreement written by the Commission following an arbitration between the negotiating parties).

The Bill includes a new term which says that every clause of the determination must be not less favourable than the existing agreement clause. Compared with the requirement for an enterprise agreement to be better than the Award on an overall basis, this change will require an intractable bargaining workplace determination to be not less favourable than the existing enterprise agreement on a line by line basis.

Traditionally in such arbitrated bargaining outcomes, the parties approach the Commission with some caution because the Commission’s ultimate decision is uncertain and is out of their hands. With this change, the employee/Union bargaining parties will have the certainty that they cannot lose the benefit of any condition in the current agreement. This is likely to encourage Unions to push bargaining to the Commission under the intractable bargaining pathway, particularly if an employer has expressed a desire to remove or reduce an existing benefit. The Union/employees will have literally nothing to lose by pushing the bargaining to the Commission to resolve.  

Takeaways

How the right to disconnect will apply to individual workers and sectors will be a matter for the FWC to evaluate and determine.

The full impact of the right to disconnect amendments is likely to remain uncertain for some time and at present there is a significant level of interest in the provisions from employees. One primary protection for employers will be to amend their employment contracts to make it clear that remuneration is paid in exchange for all hours worked, including outside work hours contact.

Employers faced with the prospect of bargaining which may end up in the Commission on an intractable bargaining dispute need to approach bargaining with a strategy designed to avoid that outcome, given the lack of benefits which employers can obtain from this pathway.

If you require expert advice about navigating these changes, and how they will affect your workforce, contact our Employment Relations and Safety Team, or join us at our upcoming seminar in Brisbane on ‘The Right to Disconnect’. Register here to learn more.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.