Our recent blog article (click here to access) highlighted the latest changes impacting employment arrangements arising from the Government’s Closing the Loopholes legislation. In this article, we take a deeper look at the changes relating to an employee’s “Right to Disconnect”.

We also include a few tips to help you navigate the changes…

Under the legislation, eligible employees will have the ‘right to disconnect’ outside of work hours. Essentially, this means that employees will have the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer or a third party (such as a client) outside their working hours, unless that refusal is unreasonable.

The new requirements commence from the 26th August 2024, or from 26th August 2025 for small business employers (that is, those with fewer than 15 employees).

While guidelines are currently being drafted (and are expected to be available by the commencement date), the following factors have at this stage been highlighted as relevant to any determination as to the “reasonableness” of a refusal:

  • the reason for the contact
  • the method of contact and level of disruption it causes the employee
  • whether the employee is compensated for:
    • being available in the period when contact is made or attempted, or
    • working additional hours outside their ordinary hours of work
  • the nature of the employee’s role and level of responsibility, and
  • the employee’s personal circumstances, including family or caring responsibilities.

The above is not exhaustive, and other factors such as the frequency/pattern of contact, may be considered depending on the individual circumstances.

Work is underway to vary all awards to include a ‘right to disconnect term’, which will provide some further detail as to how this new right will apply to different industries and occupations.

The right to disconnect will also be a workplace right under general protection laws, meaning that an employer will not be entitled to take “adverse action” (for example, disciplinary action or action to end the employment of an employee), because the employee has exercised or attempted to access a workplace right or entitlement (including the right to disconnect).

Any disputes between employees and employers related to the right to disconnect should in the first instance be attempted to be discussed and resolved by the parties themselves, at the workplace level.

If the matter remains unresolved, either or both parties can seek the support of the Fair Work Commission (the Commission) to resolve the dispute. In this event, the Commission has a range of options available; it may for example elect to express an opinion, make a recommendation, seek to mediate/conciliate or, with the agreement of the parties, arbitrate. The Commission will also have the power to issue “stop orders” to, for example, direct an employer to stop the unreasonable contact, or to direct an employee to stop unreasonably refusing contact.

There has been (in our humble opinion) a degree of hysteria whipped up by some in respect of this issue: some employer interest groups have expressed concern that employers will find themselves in court if they dare try to make any contact with an employee after hours, and some employee interest groups have expressed the view that staff will forevermore be able to ignore all contact from their employer outside of standard work hours.

As is usually the case, the reality sits somewhere in the middle.

The legislation is primarily designed to prevent those employers (a small minority in our experience), who consistently and unreasonably seek to contact their employees after hours for reasons that may simply not be that important or necessary. It’s also designed to prevent that small minority of employers from taking adverse action against any employees who might seek to resist or ignore their employer’s (or third party’s) consistent and unreasonable contact.

Conversely, the legislation is NOT designed to curtail employer’s efforts to effectively manage business operations. For example, and while the guidelines and inevitable early cases will further inform these matters, it is unlikely in our view that an employer attempting to make contact with a casual employee in the hospitality industry to ask if they can cover a shift because another employee is sick, would in itself be problematic. Nor would it likely be problematic, in our view, for an employer on a one-off occasion to reach out to a professional employee after hours to clarify something in a tender submission due that evening.

What could potentially be problematic is if the employer seeks to take adverse action against an employee who, reasonably, does not respond to their attempted contacts.

As mentioned above, the guidelines and inevitable early disputes following commencement of the legislation will further inform how employers should address this issue. At this stage though, we’d suggest employers consider the following as a means to reduce the risks associated with the new legislation:

  • Discuss the new requirements with your employees and determine your collective approach. What are the needs of the business? What are the needs and expectations of employees? What protocols can be put in place to guide contact outside of standard work times? Draft, consult and implement a Communications Policy or similar (perhaps even a “Right to Disconnect Policy”), that outlines the rights and expectations of the parties and relevant protocols. Ensure your discussions/protocols include consideration of contact via all means such as telephone, SMS, email, and the use of WhatsApp groups or similar.
  • Educate your managers and make clear the requirements/expectations relating to seeking to contact employees outside of work hours.
  • Ensure that there are mechanisms in place for effectively dealing with any concerns/disputes that might arise in-house, so that aggrieved employees don’t feel the need to prematurely reach out to the Fair Work Commission.
  • Consider the need to update contracts of employment and/or position descriptions to accurately account for any requirement for employees to be reasonably available outside of working hours. Also consider whether the employee’s remuneration takes this requirement into account (and if so, ensure that this is clear in their contract of employment).
  • Consider adding relevant statements to your and others’ email signatures, to clarify expectations. For example; “My work hours vary considerably. If you receive this email outside of standard hours, please note that I don’t expect or require you to monitor, respond or action it immediately.”
  • Recognising that the right to disconnect includes communications from third parties, get on the front foot and manage the expectations of your clients/customers. Ensure that they aware of standard work times and protocols relating to contact outside of usual hours. Be sure that your employees feel comfortable raising concerns with you in relation to unreasonable contact from clients or others, and be sure to take action to address such concerns.
  • Exercise extreme caution if considering taking action (for example, counselling or issuing a warning) against any employee who does not in your view effectively respond to your/others’ contact attempts outside of standard work hours (including contact via means of applications such as WhatsApp/ Facebook Messenger, including “group chats”).

Of course, reach out to us directly if you have questions and/or need further support.

Note that this article includes general information only. It is not formal or legal advice. Information is we believe current and accurate at the time of publication – 07/06/2024.