From the 26th August 2024, employees of a non-small business, have the right to refuse to monitor, read or respond to contact outside their working hours, unless doing so is unreasonable. What does this mean for your business? How does this impact your customer service commitment and what is the definition of “unreasonable.” We are fielding lots of questions about the new Right to Disconnect Laws and how businesses can manage these changes with minimal impact to how they do things while minimising the impact to their customers.
In this weeks blog, we are sharing some valuable advice on the Right to Disconnect from the employment law specialists, Nevetts Lawyers. For more information or to understand the impacts of these changes to your business you can reach out to Nicholas McMaster or James Remington at Nevetts Lawyers or contact one of the team at Inspire HQ.
Do Not Disturb: The Employee Right to Disconnect
Where the line is blurred between work and home in modern society, employees can often find themselves struggling to take a break from work. For employers, customers and clients, depending on the nature of their business, contacting employees after hours is sometimes a necessary part of the industry in which the business operates.
The Commonwealth government has enacted a new right for employees to effectively ‘switch off’ outside of working hours. While the name suggests an additional protection for employees under workplace relations laws, this is not an absolute right. Employees and employers should be aware of what the new law protects and its limitations.
Background
As a starting point it is perhaps useful to confirm verbatim what the new laws provide, particularly in light of publicity about the changes. Below is an extract, being the new addition to the Fair Work Act 2009 (Cth) (Act) (with emphasis added):
“Employee right to disconnect
An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.”
The right also extends to contact from a third party (such as a customer or client) if it relates to the employee’s work and is outside working hours; but again, “unless the refusal is unreasonable.”
This new right will be a protected workplace right under the Act and, if a related dispute arises, will be dealt with in the usual way: first between the parties, and failing which by the Fair Work Commission. As part of the changes, all modern awards will be required to include the new right.
The proposed laws shed some light on determining whether a refusal is “unreasonable” – the likely focal point of potential disputes. These factors include:
- the reason for the contact;
- how the contact is made, and the level of disruption caused;
- the extent to which the employee is compensated (for example, payment for additional hours of work);
- the nature of the employee’s role and the employee’s level of responsibility; and
- the employee’s personal circumstances (including family commitments).
What should employees be aware of?
Before seeking to exercise the right, it is recommended that employees first consider whether the refusal is reasonable in the circumstances. That is, to not view the new right as an absolute protection that can be relied upon in every circumstance of after-hours contact.
For example, if the employer has given prior notice that after-hours contact may occur, the employee is a senior employee, and the disruption to the employee is minimal, it may be unreasonable to the employee to simply refuse the contact. On the other hand, where for example an employee experiences high volumes of after-hours contact, causing significant disruption, and for non-urgent matters, these would likely be the types of circumstances that the laws seek to protect employees from. Until the Fair Work Commission or a Court is asked to interpret the laws to resolve a dispute, one can only speculate at this stage.
What should employers be aware of?
Given the new right provides some latitude for employers, clients and customers to contact employees outside of working hours, it is worthwhile taking steps now to communicate this to employees so expectations are clearer across the organisation before the changes take effect. While ultimately if a dispute arose it would be up to the Commission and/or a Court to decide, there are various things employers can do now to prepare:
- Audit and update position descriptions where required, particularly if any are outdated or omit any after-hours requirements.
- Prepare and consult with employees about an internal right to disconnect policy, that addresses the use of work technology and expectations regarding phone calls out of working hours.
- Updating any internal policies regarding managers contacting employees outside of working hours.
- Provide further training to managers so they are aware of the changes and how best to respond if an employee exercises the right.
- Encouraging all employees to schedule emails and other correspondence within working hours.
- Conducting training or sessions to highlight the mental health benefits of disconnecting from work.
What issues might arise under the new laws?
Employers adopting the above steps cannot completely remove the risk of a dispute and a claim that any given out-of-hours contact is unreasonable and a breach of the Act.
For employees, given it is not an absolute right, this may create uncertainty as to what circumstances will allow an employee to refuse contact and feel comfortable that the refusal will not be deemed unreasonable.
Time will also tell as to what other potential impacts the new laws will have on other provisions of the Act, and the way in which human resourcing is managed within organisations such as rostering arrangements.
What timeframes should employees and employers be aware of?
The right to disconnect laws will take effect:
- for non-small business employers, on 26 August 2024; and
- for small business employers, on 26 August 2025.
If this article raises any queries or concerns for you, or if you would like legal advice relating to any other new changes to the Act, please contact our office and we’d be happy to assist.
Author: Nicholas McMaster & James Remington
The information in this article is general in nature and is not to be relied upon as legal advice. As always, we recommend you seek thorough legal advice to consider your own circumstances and determine whether the information contained in this article is applicable to you. This article is current as at the date of publishing but will not be updated as circumstances change.
