The Right to Disconnect is the latest IR legislation on everyone’s lips, complete with all the normal misinformation, misinterpretation and fear mongering.
But what is it really about? And in an era where we talk about the importance of connectivity, alignment and engagement in workplaces, why are we suddenly needing legislation that wants us to disconnect?
Let’s be clear – great employers, with the right intentions, already do this well. They connect with their people, they do not constrain them with unrealistic expectations to be constantly available or ‘connected’ to work devices or channels.
Of course, there are always those few who do the wrong thing that impact the rest – employers who expect employees to take calls at all hours, or bombard them with emails and texts during their family time.
It is a sad state of affairs that politicians feel we need legislation to respect good boundaries. And unfortunately, this type of legislation means the majority (good employers) will feel the consequences along with the handful that are not.
As with all things, if we bring back some good, old-fashioned common sense, we will see a way through to setting the right expectations to suit the workplace, the culture, and the nature of the industry/job. A practical and steady hand is needed.
So let’s explore the detail ….
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 introduced new rules and protections giving employees the protected “right to disconnect”.
This new right will commence on the 26th of August 2024, six months after royal assent (which occurred on the 26th of February 2024) for non-small business employers. Small business employers have an additional six months to prepare for these new rules as they don’t commence until 26th of February 2025, 12 months after royal assent.
What’s changed?
Under the new laws, employees will have an automatic right to 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’.
What is considered to be ‘unreasonable’ has been left open ended, however the legislation does provide some matters that the Fair Work Commission must consider when determining whether a refusal is unreasonable including:
- 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).
Disputes about the employee’s right to disconnect must be discussed and attempted to be resolved at a workplace level in the first instance. If discussions at the workplace level do not resolve the dispute, either the employer or employee may apply for the Fair Work Commission to do either or both of the following:
- make an order to stop refusing contact or to stop taking certain actions;
- otherwise deal with the dispute.
Employers also cannot take adverse action against an employee (e.g. dismissing or disciplining an employee) for exercising their right to disconnect (where this is not unreasonable), as it will be prohibited under the General Protections provisions in the Fair Work Act. To learn more about General Protections, head to the Fair Work Commission’s General Protections page.
Practical tips
As with any new change, we always recommend employers take a common sense approach. The new protections do not stop employers from sending messages or emails to employees outside of work hours, however it does put work-life balance at the forefront by allowing certain employees the ability to unplug and not respond to such contact after hours.
Employers should ensure that they review their individual contracts and position descriptions for the roles that they might specifically require to respond outside of hours as whole of workplace boilerplate policies may not satisfy the Fair Work Commission that a refusal was unreasonable. This is because, as outlined above, the assessment is based on an individual’s role, compensation and family responsibilities.
If an employer does require an employee to respond after hours, it will be important to ensure that their contract of employment and position description appropriately reflect this obligation (i.e. the nature of the employee’s role and the employee’s level of responsibility). It will also be important to ensure that consideration is given to compensating the employee for the requirement to remain available and to respond to contact after hours (depending on the required contact, this may mean additional remuneration/an allowance). Further, it will be important to appropriately educate third parties who contact employees to ensure that they are aware of the new limitations and what they will mean for the employees they contact after hours.
For more information or if you would like assistance with getting ready for the right to disconnect, get in touch with us to see how we can assist.