An employee’s right to disconnect from their workplace outside of hours is one of the workplace law changes being introduced as part of the Closing Loopholes Bill.

These changes in relation to the employee’s right to disconnect will start on:

  • 26 August 2024 for non-small business employers
  • 26 August 2025 for small business employers (14 or less employees).

We’re expecting to see the laws trickle down to Modern Awards soon after.

What does this all mean for employers and employees?

  1. An employee can now ignore or choose to not respond to any contact (phone, text, emails, etc) from their employer outside of their working hours. The only exception is where the refusal to respond would be unreasonable (we will have to see how this plays out in the real world). However, we note that:
    1. Generally speaking, if the contract of employment provides for remuneration or consideration for the employee to be contacted outside of working hours (such as IT support), then this type of contact may be excluded from the new laws.
    2. The seniority, nature and role of the employee’s position and function within the business.
    3. Level of disruption caused, and factoring in any personal circumstances of the employee (e.g., family and/or caring responsibilities).
  2. It’s important to note that the “contact outside of working hours” will not in itself be an unlawful act, but any adverse actions that the employer may take against the employee for choosing or not responding to the contact that will be made unlawful and will breach the Fair Work Act.

What’s the takeaway from all this? Businesses (more than ever) should pay more attention to their contracts of employment. We often see a range of different contracts that come across our desk, and whilst the worst offenders are contracts where it’s a compilation of random free templates found on Google put together, other contracts, whilst sometimes drafted well, can omit key clauses and details in the event of a dispute. The lesson here is that all contracts should be tailored and customised to the individual (or classes) of employees, suited to their circumstances, roles and responsibilities (inside and outside of work).

If you would like to talk to an experienced employment lawyer about any of the contents of this article, please contact us at Rankin Business Lawyers for practical, on-point commercial legal guidance.

Daniel Le