Employment Law Update – Right to Disconnect

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The Fair Work Commission is investigating whether flexible work-from-home arrangements should be a legal entitlement for around 2.2 million workers on award wages. The review (which is also looking at a range of other workplaces issues) will make recommendations to the federal government.

Currently, workers do not have a general right or entitlement to work from home, although they may be able to request to work from home under certain conditions if they have been with their employer for at least 12 months.

A Fair Work discussion paper released in January suggested that remote work did not impede on overall productivity levels but did note that it raised challenges for employers. In addition, it stated: “Improved flexibility as to when and where people work may also create ambiguity as to when workers can disconnect from work, which can impact on wellbeing.”

Recent developments such as the Fair Work Amendment (Right to Disconnect) Bill 2023 seek to address some of these wellbeing concerns, including with the “right to disconnect” in the new section 333M of the Fair Work Act 2009 (Cth). This new right allows an employee to refuse to monitor, read or respond to contact or attempted contact from an employer (or a third party, where the third party’s contact relates to the employment) outside of the employee’s working hours unless the refusal is unreasonable. It is also a protected right under the general protections regime.

For employers, this may mean considering the implementation of a right to disconnect policy (if one does not already exist) and checking employment contracts to ensure that they are in accordance with the updated legislation. Small businesses should note that there is a 12-month period before the new rules take effect.

Brockhill & Usherwood can be contacted on 1300 456 546 for assistance in navigating these new changes.

Author: Blair McNamara (assisted by Katy Gale)

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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