Everything you need to know about the ‘Right to Disconnect’ legislation
From 26 August 2024, employees will have the ‘right to disconnect’ outside of their working hours, unless the refusal is unreasonable. If your business fits the Small Business Code definition, this will come into effect next year (26 August)
This legislation is not saying employers can’t contact their employees outside their usual work hour. As an employer or manager, you can still contact your employee. It is more about whether the employee is required to respond to that contact or not.
In this week’s Akyra blog, we take a look at what the Right to Disconnect legislation will mean for employers and provide some handy tips on how you can prepare for these upcoming changes.
The Right to Disconnect: an explainer
Due to advances in technology, employees can now be contacted by their employers at any time and location. The right to disconnect legislation is not meant to broadly prohibit contacting employees outside working hours, or to allow employees to ignore such contact completely.
However, employees will now have the right to refuse to monitor, read, or respond to contact outside working hours unless the refusal is unreasonable. This right applies to contact from both employers and third parties.
The reasonableness of an employee’s refusal to engage with contact outside working hours will be determined based on the following factors:
- The reason for the contact
- How the contact is made and the level of disruption it causes the employee
- Whether the employee is compensated for remaining available to work or for working additional hours outside regular hours
- The nature of the employee’s role and their level of responsibility
- The employee’s personal circumstances
The right to disconnect will be incorporated into the Fair Work Act 2009 (Cth) as a ‘workplace right.’ Consequently, employers will be prohibited from taking adverse action against an employee who exercises their right to disconnect if the refusal is reasonable.
If a workplace dispute cannot be resolved, the Fair Work Commission will have the authority to issue orders, such as preventing employers from disciplining employees for exercising their right to disconnect or stopping employees from unreasonably refusing contact.
Potential issues where workers are rostered across the 24-hour cycle
For shift workers, employers will need to have a policy on the right to disconnect, be clear at the recruitment stage that out of hours contact is likely and include a clause in employment agreements to this effect.
The employment agreement and any communications should also specify that are provided as recognition out of hours contact may or will be required. Undertaking these steps will assist in demonstrating that it is reasonable to make contact and require a response outside of regular hours is reasonable.
Where an employee is not a shift worker but has a management or senior role with an expectation of out of hours contact (and requirement for a response), communicating that expectation via interview, policy and employment agreement will provide clarity.
What does this mean for small businesses?
If the business fits the Small Business Code definition (i.e. employs less than 15 people), this legislation won’t apply until 26 August 2025.
Where the business has a workforce that works shift hours with variable rosters, they will need to ensure their policy and remuneration arrangements are clear.
While the ‘right to disconnect’ aims to reduce work-related stress outside of hours, its implementation still needs to be practical, especially for shift workers.
Practical tips
Despite the uncertainty, there are some simple steps that employers can (and should) take now to get ready for these upcoming changes.
Training
- Make sure employees at all levels understand what the changes mean and how they will be managed.
- Managers, and any other employees who may delegate work, need to understand the circumstances in which they should avoid contacting employees outside normal working hours.
- Employees should understand that reasonable additional hours and associated contact will still be required and is permitted.
Communication
- With flexible working a feature of many workplaces, employees may send correspondence at unusual times (that suit them). Consider whether correspondence sent outside ‘normal’ business hours should specify that an immediate response is not expected. Many email signatures now include statements to this effect.
- Similarly, when contact outside working hours is reasonably required, it may be helpful to both specify this and explain the basis of the urgency.
- In circumstances where the entitlement also applies to contact from third parties (e.g. clients and suppliers), it may be worthwhile sending a communication to those parties to set expectations.
Review Contracts and Policies/Procedures
- A key consideration for whether a refusal is reasonable is if the employee is compensated for such contact – so a review of contracts, position descriptions and policies is critical.
- They should make clear that certain positions may require contact outside regular working hours, and that such contact is compensated (usually by way of a higher salary).
- Employers should explicitly include a clause to reflect the requirement for contact / response and their salary covers this requirement. This will support the reasonableness of the requirement. This factor is also detailed in the legislation and would be considered by the Fair Work Commission in any disputes.
- What this means in practice is that the more senior the position is, the less likely it is the employee could ignore communications outside of work hours and claim it was reasonable to do so.
Key takeaways
- Taking adverse action against an employee for exercising their right to disconnect is highly likely to expose employers to legal risks.
- Employers can best-position themselves by preparing workplace policies addressing the right to disconnect.
- These changes have the potential to cause business disruption and staff disharmony.
- It is critical that employers act now to ensure they are ready to meet the challenges that may arise.
Akyra can assist your business with preparing for the implementation of the Right to Disconnect legislation, as well as other employment law reforms. Contact us today to book an obligation-free consultation with one of our experienced HR specialists.
FREE DOWNLOAD: Right to Disconnect Employer Checklist
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
