Well today is a significant day in Australian business, and not just because it’s exactly 4 months until Christmas (scary, we know!).
It’s because when we get to work tomorrow, the new “Right to Disconnect,” laws will apply. We hope and suspect that for most businesses, this won’t substantially change how you’re doing things, but its still important to understand how the legislative changes work.
The Legislative Instrument
The legislation originated in the Albanese governments’ “Closing Loopholes Bill No.2”, which results in changes to the Fair Work Act. The legislation was passed in February 2024, and take effect from 26 August 2024. Modern awards enacted after tomorrow must include a “right to disconnect” clause.
Reasons for the Change
Concerns have been expressed about workers increasingly being expected to “be available” at all hours of the day, including outside of their allocated working hours. Factors such as the increase in working from home, improved telecommunications (eg. mobile phones, wi-fi) and growing job insecurity are believed to have contributed to this trend.
What Does the Legislation Allow Employees To Do?
An employee may refuse to monitor, read or respond to contact or attempted contact from an employer (or from a third party that is contacting the employee about a work related matter) outside of the employee’s working hours, unless the refusal is unreasonable. Note that the employee has not only the right to refuse to answer, but also to refuse to monitor the contact (for example, this could include switching off a mobile phone).
What are “Working Hours”?
The term is not specifically defined in the legislation. It comes down to the expectations that have been built between the employee and employer on a case-by-case basis. Ideally, these should be set out in writing in the likes of employment contracts, EBA’s and company policies.
In addition, the legislation doesn’t specify periods of leave (e.g. annual leave, sick leave), but it is assumed that the right to disconnect applies during this time as well.
What Can Employers Reasonably Do?
First, it is not an offence to contact an employer to contact an employee after hours (e.g. send an email, leave a voicemail message), so long as there is not a requirement for the employee to respond or check the message if it is unreasonable to do so.
The concept of “unreasonable” is clearly very subjective, so the legislation sets out 5 criteria to take into account:
- What is the reason for the contact or attempted contact. Is it genuinely urgent?;
- How is the contact made? (e.g. a phone call in the middle of the night is less reasonable than an email at 6pm);
- Will the employee be compensated for addressing the contact, e.g. overtime?;
- What is the nature of the employee’s role? For example, an employee responsible for rostering could probably reasonably be expected to have to deal with last minute changes, for example when employees call in sick; and
- What are the employees’ personal circumstances, e.g. family and caring responsibilities.
Disputes
If internal mediation is not successful, either party may apply to the Fair Work Commission under the Fair Work Act. The Commission cannot issue a penalty in its own right, but penalties can apply for not following the Commission’s directives.
What Employers Should Do?
- Explain the legislative changes to their employees;
- Make sure employees are clear in their expectations about what level of out-of-hours contact might be involved in their role. For new employees, these expectations should be set in the interview process, re-iterated clearly in employment contracts and reinforced through regular feedback and performance reviews. For existing employees, this may include amending and updating employment contracts, holding training or in-person meetings;
- Set a procedure for dealing with “emergency” situations to help employees understand which contacts are most likely to be urgent. For example, explain to employees that for non-urgent matters that arise out of hours, these will be communicated by email that can be responded to at a later day, but for urgent matters, employees will receive a text message; and
- Create an internal policy document for dealing with the “right to disconnect,” rules.
If you have any questions or need further guidance on right to disconnect laws, don’t hesitate to contact our team – we’re here to help you navigate these changes and empower your success. #EmpowerSuccess