As part of a sweep of changes to the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 has created a “right to disconnect”.
The “right to disconnect” laws appear to be a drafter’s mash-up of two other Divisions of the FW Act – namely, ss 62 to 64 of the FW Act (which broadly prohibit an employer from requiring or requesting an employee to work unreasonable additional hours) and ss 789FC to 789FL of the FW Act (which broadly prohibit individuals from bullying a worker at work).
Section 333M of the FW Act provides that an employee may “refuse to monitor, read or respond to contact, or attempted contact” from “an employer” or a “third party” outside of the employee’s working hours unless the refusal is unreasonable.
The evaluative exercise will likely take guidance from the case law that has considered s 62 of the FW Act. To that end, one can expect initial decisions to consider the leading decisions of Katzmann J in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 and Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512.
The enforcement regime that supports s 333M departs substantially from s 62 of the FW Act. Sections 333N and 333P of the FW Act provide that the Fair Work Commission is to deal with disputes arising under s 333M. Sections 333N and 333P of the FW Act share the general structure of the Commission’s “stop bullying” jurisdiction – especially, ss 789FD and 789FF.
The order-making powers of the Commission under s 333P(2) of the FW Act are vast.
Drawing from “stop bullying” jurisdiction, orders under s 333P of the FW Act might be granularly tailored to the circumstances of a workplace. For example, “stop bullying” orders made under s 789FF of the FW Act have included orders that than an employee “shall have no contact with the applicant alone”, “shall make no comment about the applicant’s clothes or appearance”, and “shall not send any emails or texts to the applicant in emergency circumstances”: Obatoki v Mallee Track Health and Community Services [2015] FWCFB 1661; 249 IR 135 at [20]-[21].
The consequences of breaching any such far-reaching order also warrant attention. Through s 333Q of the FW Act, the contravention of an order made under s 333P allows an affected party (or an industrial association, or an inspector of the Fair Work Ombudsman) to make an application to a court of competent jurisdiction to seek compensation, injunctive relief, or penalties against an employee or employer in breach of such order.
A Court, determining such application, is not to look behind the order made by the Commission. Rather, the role of the Court will simply be to determine whether the orders made by the Commission have or have not been complied with.
For this reason, any party that might be the subject of orders of the Commission should not take lightly any order made. Indeed, there is good reason for an employee or an employer to resist the making of any order whatsoever or chance the potentially precarious situation created by s 333Q of the FW Act.
This is an abridged version of a longer note published here.
