A Workable Work-Life Balance
How can we escape the rat race? Wikimedia Commons.
The Fair Work Legislation Amendment (Closing the Loopholes No. 2) Act 2024 (Cth) (‘Closing the Loopholes Act’) provides that all modern awards must provide for an employee’s ‘Right to Disconnect’. [1] S 97 provides that employees may refuse to read or respond to contact (including attempted contact) from an employer or third party outside of the employee’s working hours unless the refusal is unreasonable. [2] S 97 also provides that in determining whether a refusal is unreasonable, the following factors must be taken into account: the reason for the contact, how the contact is made, extent to which the employee is compensated, the nature of the employee’s roles and responsibilities, and the employee’s personal circumstances (including family or caring responsibilities). [3] The ‘Right to Disconnect’ provisions enter into force on 26 August 2024 for non-small business employers (15 or more employees) and 26 August 2025 for small businesses (less than 15 employees). [4] These provisions are the first of its kind in Australia, and this article will compare Australia’s ‘Right to Disconnect’ laws to overseas jurisdictions such as Canada and Spain.
Canada
Part VII.0.1 of the Employment Standards Act 2000 (Ontario) provides that employers with 25 or more employees must implement a written policy ensuring that all employees can disconnect from work. This includes not engaging in work-related communications such as answering emails or telephone calls. [5] However, this law does not give rise to an enforceable right to disconnect for employees, and reflects a softer approach compared to Australia’s Closing the Loopholes Act, which allows employers and employees to seek binding orders from the Fair Work Commission for alleged breaches of the right to disconnect provisions. [6]
Spain
Article 88 of the Organic Law 3/2018 of December 5, on Personal Data Protection and Guarantee of Digital Rights provides that employees have the right to digital disconnection outside of legal or conventional working hours to account for rest and privacy. [7] Like Ontario, Spanish law also mandates employers to implement internal policies regarding the right to disconnect. [8] Employers who contravene the right to disconnect may receive fines, as an employer who sent emails outside of working hours was fined 300 EUR (approximately 495 AUD), although it should be noted that in this matter the impugned number of emails was quite low. [9] Accordingly, the Spanish approach is significantly stronger than Australia, as the Closing the Loopholes Act does not vest the power to impose fines on the Fair Work Commission. Rather, the Commission is limited to issuing stop orders to the contravening party. [10]
Conclusion
The Closing the Loopholes Act reflects a major shift in Australia’s industrial relations as the legislation of the employee’s right to disconnect reflects an important step to facilitating work-life balance. However, the limitation of the Fair Work Commission’s powers to merely issue orders (as opposed to Spain’s approach of issuing fines) may inhibit the effective enforcement of such law. Only time will tell.
[1] Fair Work Legislation Amendment (Closing the Loopholes No 2) Act 2004 (Cth) (‘Closing the Loopholes Act (No. 2)’) s 95.
[2] Ibid s 97.
[3] Ibid.
[4] Fair Work Ombudsman, ‘Closing Loopholes, Right to Disconnect (Website, 31 July 2024) <https://www.fairwork.gov.au/about-us/workplace-laws/legislation-changes/closing-loopholes/right-to-disconnect>.
[5] Employment Standards Act, S.O 2000, c 41, ss 21.1.1, 21.1.2.
[6] Closing the Loopholes (No 2) Act (n 1) s 97; Emma Corcoran and Ute Krudewagen, ‘Employment Alert’, A look at global employee disconnect laws for US counsel (Website, 19 April 2024) <https://www.dlapiper.com/en-au/insights/publications/2024/04/a-look-at-global-employee-disconnect-laws-for-us-counsel#1>.
[7] Organic Law 3/2018, of December 5, on Personal Data Protection and Guarantee of Digital Rights (Spain) art 88(1).
[8] Ibid art 88(3).
[9] Judgement 1158/2024 of the Labour Chamber of the High Court of Justice of Madrid of 4 March 2024; Cristina Grande, ‘Employment Spain Newsletter May’, New Legislation (Website, 29 May 2024) <https://www.ashurst.com/en/insights/employment-spain-newsletter-may-2024/>.
[10] Closing the Loopholes (No 2) Act (n 1) s 97.
This article was originally published under the title ‘The Right to Disconnect in the Fair Work Legislation Amendment (Closing the Loopholes No. 2) Act 2024 (Cth)’ in The Brief Edition 3, 2024 — Ad Aeternitatem.