On 12 February 2024, the Albanese Government passed legislation to the ‘Right to Disconnect’ law (‘The Right’). In summary, the new law provides that employers cannot contact an employee outside their hours of work unless it is an emergency or genuine welfare matter; or the said employee is in receipt of an ‘availability allowance’.
The Right has not been introduced without controversy including the Opposition pledging to repeal it if they were to enter government1 and Wesfarmers advising that it could impair ‘customer service levels’.2
What is the Right?
The Right to Disconnect provides the following under section 64A of the Fair Work Act 2009 (Cth):
64A Right to disconnect outside of working hours
(1) An employer must not contact an employee outside of the employee’s hours of work (including during periods of leave), unless:
(a) the reason for the contact is an emergency or a genuine welfare matter; or
(b) the employee is in receipt of an availability allowance for the period during which the contact is made.
(2) An employee is not required to monitor, read or respond to emails, telephone calls or any other kind of communication from an employer outside of the employee’s hours of work (including 21 during periods of leave) unless the employee is in receipt of an availability allowance for the period during which the communication is made.
(3) In this section:
availability allowance, for a period, means an allowance for being rostered, or otherwise directed by an employer, to remain available to perform work during the period.
In consideration of the above and as outlined by other commentators, there could questions in relation to the definitions of ‘emergency’ or the reasonable or value of a ‘availability allowance’ in the future.3
Effect of the Right
On the face it, the new Right in the Fair Work Act 2009 (Cth), will create considerations for employers that they will have to consider, in particular:
(a) is the contact necessary and needed; or
- if contact is made, what is the cost or quantum of the availability allowance.
The above, in the context of the legal industry, will no doubt have an effect on the culture of legal practice and how the work is conducted. I am sure there are senior lawyers who believe being contacted outside of work hours is part of the culture of the legal profession, but this Right has provided a legislative ‘boundary’ that must be considered before the ‘old days’ of contacting after hours can be done.
In particular, such effect could include:
(a) if the contact is not an emergency or a genuine welfare matter, then will the employer compensate the ‘availability allowance’; or
- if the employer is not inclined to compensate the employee with the ‘availability allowance’, the employer may need to consider means to avoid the necessary of contacting their employees outside of usual work hours such as hiring more staff in order to avoid the need to conduct work after hours.
The other consideration is if an employee raises a concern via the Right, the employer must not take adverse action against the said employee as it could lead to a breach under the General Protections provisions under Fair Work Act 2009 (Cth).
As a whole, this reform will no doubt change how employers manage work and as outlined, there are definite considerations that should be taken into account due to the said action.
Overall
The Right, as it is a new provision for the Fair Work Act 2009 (Cth) will have uncertainty, but no doubt, case law regarding the scope, limits and enforceability will arise in time. In addition, the Right should be seen as a point in time to reflect on the culture of the legal industry and consider what needs to be done in order to remain compliant.
Footnotes
1 https://www.abc.net.au/news/2024-02-11/peter-dutton-vows-repeal-right-to-disconnect/103453148
2 Smith, Sean, ‘Wesfarmers fears Right to Disconnect rules a drag on business, could impair customer service levels’, https://thewest.com.au/business/retail/wesfarmers-fears-right-to-disconnect-rules-a-drag-on-business-could-impair-customer-service-levels-c-13606903
3 Croft, Lauren, ‘Right to Disconnect Bill could create ‘significant management issue for law firms’, Lawyers Weekly
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