Chapter 1Introduction
1.1The Fair Work Amendment Bill 2024 (bill) seeks to amend the Fair Work Act 2009 (FW Act) to provide that a person who contravenes a Fair Work Commission (FWC) order relating to an employee's right to disconnect would not be exposed to a criminal penalty.
Context of the bill
Working hours in Australia
1.2Long working hours are a feature of Australia's labour market, with Australians working some of the highest number of hours in the OECD annually.
1.3Australians also work significant unpaid hours in addition to their regular hours—a situation that has been exacerbated by digital technologies, as well as the growth in work from home arrangements.
1.4Taken together, this has led to the development of an 'always on' work culture that extends beyond conventional locations, days and hours of work.
1.5Research has found that working additional hours—in addition to regular hours—and being constantly connected to the workplace can negatively impact employees' health, safety and wellbeing.
Right to disconnect laws
1.6Right to disconnect laws have been legislated in a number of European countries, beginning with France in 2016, as well as Kenya and the Philippines.
1.7In Australia, provisions dealing with the right to disconnect were included in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, which passed both houses of Parliament on 12 February 2024.
1.8The right to disconnect provisions will commence the day after the end of the six-month period that began on 26 February 2024, when the bill received Royal Assent. For small businesses, the provisions will not commence for an additional 12 months.
1.9Once commenced, these provisions will allow an employee to refuse contact (orattempted contact) from their employer or a third party outside the employee's working hours—unless the refusal is unreasonable.
1.10Determining whether an employee's refusal is unreasonable will include consideration of the reason for contact, how contact is made and how disruptive it is, the extent to which the employee is compensated for working additional hours (or being available to perform work during the period of contact), the employee's role and level of responsibility, and the employee's personal circumstances (including family or caring responsibilities).
1.11The provisions will also allow the FWC to deal with disputes between employers and employees about the right to disconnect. This includes making orders to stop refusing contact or to stop taking certain actions, or otherwise deal with the dispute.
Overview of the bill
1.12Currently, subsection 675(1) of the FW Act provides that a person commits an offence if their conduct contravenes an FWC order made under that Act. Exceptions to the application of this subsection are set out in subsection 675(2) of the FW Act.
1.13The bill would insert a new paragraph 675(2)(fa), which would provide that subsection 675(1) does not apply to orders made under Division 6 of Part 2-9 of the FW Act, which deals with the right to disconnect. That is, a contravention of an FWC order relating to the right to disconnect would not expose a person to a criminal penalty.
1.14Instead, only civil penalties would apply. This would be consistent with contraventions of similar orders under the 'stop bullying' and 'stop sexual harassment' provisions of the FW Act.
1.15The bill's provisions would take effect at the same time as the commencement of the right to disconnect provisions.
Proposed amendments to the bill
1.16Senator Michaelia Cash, on behalf of the Opposition, has proposed moving an amendment to the bill that would repeal the right to disconnect. Should this amendment not be agreed, Senator Cash has proposed moving further amendments that would:
strip the right to disconnect from employees of businesses with fewer than 20 employees; and
repeal the civil penalties provision in relation to the right to disconnect.
Financial implications
1.17The bill will have no financial impact.
Consideration by other parliamentary committees
1.18When examining a bill, the committee considers any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.19The Scrutiny Committee examined the bill in its Scrutiny Digest 3 of 2024 and made no comment. At the time of writing, the Human Rights Committee had not considered the bill. However, the Explanatory Memorandum's statement of compatibility with human rights concluded that the bill is 'compatible with human rights because it promotes human rights, including civil, political, social, economic and labour rights'.
Conduct of the committee's inquiry
1.20On 29 February 2024, the Senate referred the bill to the committee for inquiry and report by 14 March 2024.
1.21The committee advertised the inquiry on its website and invited submissions by 8 March 2024. The committee received eight submissions which are listed at Appendix 1 of this report. The public submissions are available on the committee's website.
1.22The committee thanks those individuals and organisations who contributed to this inquiry by preparing written submissions.