Employee right to disconnect – business bogeyman or work-life win?
Much has been written about the pros and cons of the Federal Government’s new right to disconnect legislation as set out in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, passed earlier this month. On the one hand, there are employer organisations declaring it to be “ridiculous”; on the other, unions are calling it a “fair and essential” way to balance work and personal time.
However, we believe this debate should be taken with a grain of salt, as both sides are looking to appeal to their respective audiences, with neither side giving businesses any guidance on how this new employee right can be practically managed in the workplace. So what should employers consider before the new laws kick in? In this article, we discuss a few ways to think about these new laws as an opportunity rather than just another problem.
The legislation
The new law, as inserted into the Fair Work Act 2009 (Cth) (FW Act) entitles employees to refuse to monitor, read or respond to contact or attempted contact from their employer or a third party (for example, a client) outside of their working hours unless the refusal is unreasonable (the right to disconnect, or RTD).
In determining whether the refusal is unreasonable the following matters must be taken into account:
- the reason for the contact or attempted contact;
- how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
- the extent to which the employee is compensated:
- to remain available to perform work during the period in which the contact or attempted contact is made; or
- for working additional hours outside of the employee’s ordinary hours of work;
- the nature of the employee’s role and the employee’s level of responsibility;
- the employee’s personal circumstances (including family or caring responsibilities).
As the RTD will be considered a “workplace right” under the FW Act, if an employer takes adverse action against an employee who refuses to respond to out-of-hours employer contact, the employee will be able to commence a general protections claim against the employer.
If the employer and employee are unable to resolve disputes about the RTD, then either party can apply for a “stop order” at the Fair Work Commission – essentially, an order that the employer stops making unreasonable contact with their employee out of hours (if the employee has made the application), or an order that the employee stops unreasonably refusing to monitor or respond to out-of-hours contact with their employer (if the employer has made the application). It is envisaged that the “stop order” will operate similarly to the orders made in the long-established anti-bullying jurisdiction of the Commission.
Each case will be dependent on its unique set of circumstances, and where orders are made, all parties involved will be obligated to adhere to the orders issued by the Commission.
What can employers do now?
The legislation will come into effect in approximately 6 months (noting that there are exemptions for key services such as the Defence Force and the Federal Police). Small business employers (i.e those with fewer than 15 employees) will not be impacted by the legislation for a further 12 months. This presents an opportunity for employers to prepare for this change well in advance of the date for compliance.
It’s important for employers to consider how this will apply generally across their business (i.e. in respect of all employees or in a business-wide sense) as well as in relation to the specific circumstances of employees or particular roles. Some initial areas for consideration are set out below:
As to the issue generally:
- review, and where necessary, update policies and training documents;
- provide training to managers on appropriate and reasonable contact with employees;
- consider whether emails can be scheduled to be sent during work hours;
- provide training to employees on the RTD, the business’ position on it, and what steps the business is taking to ensure its compliance.
As to employee / role specific circumstances:
- think about which roles might require out-of-hours contact – if necessary, update position descriptions to include out-of-hours contact as an inherent requirement of the role;
- consider whether individual salaries justify some level of out-of-hours contact – if so, document this in the relevant position description / employment contract;
- consider individual employee circumstances (including caring / family responsibilities) and if necessary consult with employees to determine the guidelines of reasonable out-of-hours contact.
As is the case with most workplace matters, the best way for employers to ensure compliance with the new law is to communicate business expectations with employees clearly and openly – just maybe not after 5:00 pm!
If you have any questions about any of the changes that have passed or are upcoming, please reach out to a member of our Employment team:
James Francis | Senior Associate
Disclaimer: The content provided in this publication is intended for general informational purposes only and should not be construed as tailored advice to address specific individual or organisational circumstances. While we strive to offer accurate and up-to-date information, we cannot guarantee its accuracy at the time of receipt or its continued accuracy in the future. Readers are encouraged to seek professional advice or consult relevant authorities regarding their unique situations.
