An update on the 'Right to Disconnect'
In our last newsletter we shared a summary of recent and proposed changes to the Fair Work Act and other employment legislation. Since then the Closing Loopholes No. 2 legislation has received Royal Assent, and the Commission has announced start dates for these reforms.
Click here for the full timetable of implementation dates. HRplus will provide regular updates in this regard over the coming months.
In this newsletter, we will focus on the controversial 'Right to Disconnect' legislation which will commence on 26 August 2024 for most employers and 26 August 2025 for small businesses.
1. Overview
The right to disconnect will become a protected right under the general protections’ regime of the Fair Work Act.
It will give employees the right to refuse to monitor, read or respond to contact or attempted contact outside of work hours from their employer.
This right will apply to any form of communication, including emails, calls, texts or any work-related messaging platforms.
It will extend to allow employees to refuse to respond to contact or attempted contact outside of ordinary work hours from third parties (e.g. a client) in relation to work matters.
An employer will not be permitted to take adverse action against an employee reasonably refusing contact outside ordinary working hours.
2. Disputes
If a dispute arises between an employer and its employee in this regard and cannot be resolved, either party will be able to apply to the Fair Work Commission to deal with the dispute.
The Fair Work Commission may make orders to:
prevent an employee from unreasonably refusing contact with their employer
prevent an employer from contacting an employee outside of work hours
prevent an employer from taking disciplinary action against an employee as a result of the employee refusing contact outside of their normal working hours.
3. Exceptions
The right to disconnect will not apply to circumstances in which an employee’s refusal is deemed to be unreasonable.
The following is a non-exhaustive list of relevant considerations in determining if an employee’s refusal to respond to contact by an employer or relevant third party is unreasonable:
the reason for contact
how contact is made
the level of disruption resulting from contact
the extent to which an employee is compensated to remain available to work during the period when contact/attempted contact is made or for working additional hours outside the employee’s ordinary hours of employment
the nature of the employee’s role and their level of responsibility
any relevant personal circumstances, for example, family or caring responsibilities.
4. What do employers need to do?
(in advance of 26th August)
To safeguard themselves and navigate the potential minefield, employers should:
Review employment contracts and position descriptions, specifically clauses pertaining to salary, remuneration and duties, in order to ascertain if employees are remunerated with an expectation to be contactable outside of normal working hours
Review current policies regarding employees being contactable outside normal working hours
Provide training to managers to ensure they are aware of the changes and do not treat employees adversely if they reasonably refuse after-hours contact
Provide information to employees regarding the new right to disconnect
Check the Awards that apply to your business for new clauses relating specifically to the application of this legislation in your business. The Fair Work Commission is in the process of preparing written guidelines on applications across different industries.