It was a Greens sponsored amendment to Closing Loopholes No 2 Bill. In my working life as both an employee and an employer I've never seen a situation where this right would be warranted so I'm struggling to see why it's necessary to make it a law.
Closing Loopholes No 2 Bill inserts a new right to disconnect in the Fair Work Act.
Some employer groups and others have criticised the lack of consultation over its introduction.
Employees will have the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of their working hours – unless that refusal is unreasonable. The right also extends to contact (or attempted contact) outside of the employee's working hours from a third party if work related (e.g. from customers or clients). This proposed clause differs from an earlier Greens' proposal which had sought to place a general prohibition on employers unreasonably contacting employees outside their hours of work (subject to some exceptions).
Without limiting the matters to take in account, the Bill lists these factors that must be considered in determining whether an employee's refusal to be contacted is unreasonable: *the reason for the contact or attempted contact; *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 (including non-monetary compensation) to remain available to perform work or be contacted, *or for working additional hours, outside of ordinary working hours; * the nature of the employee’s role and the employee’s level of responsibility; *and the employee’s personal circumstances (including family or caring responsibilities).
If there is a dispute regarding the employee's right to disconnect, the parties must first attempt to resolve it at the workplace level. If the matter is not resolved, the employer or employee can apply to the FWC to make an order to stop refusing contact, to stop taking certain actions, or to otherwise deal with the dispute. Penalties can be imposed if an order is breached. The right to disconnect will also be a workplace right for the purposes of the general protection regime under the Fair Work Act – giving employees an additional claim if, for example, they allegedly suffer detriment for refusing to monitor, read or respond to contact.
There are an increasing number of right to disconnect clauses in enterprise agreements – they will continue to apply if they are more favourable than this new right in the Fair Work Act.
All modern awards will also be required to include a right to disconnect clause.
Greens Senator Barbara Pocock, a key proponent of the reform, is reported as saying the Greens do not expect to see "a deluge of legal cases about the right to disconnect" and that the purpose of the reform is about "improving the conversation about the boundary around our working time."
