The Right to Disconnect: What it Means for Employers
Maintaining healthy boundaries between work and personal life is vital for managing stress, as out-of-hours contact can disrupt time needed for physical and/or mental recovery.
That’s the motivation behind the recent passing of the Fair Work Amendment (Right to Disconnect) Bill here in Australia.
While a step in the right direction, at the same time it puts employers under pressure to familiarise themselves with the changes before they come into effect. The deadline for most is 26 August 2024, with small businesses on a more generous timeline of 26 August 2025.
The new legislation addresses growing concerns about the way modern technology has made work accessible 24/7, and the mental health issues that may arise as a result.
What is the Right to Disconnect?
The right to disconnect allows workers to ‘switch off’ after hours and choose not to engage with work communications.
In essence, it gives employees the right to refuse to monitor, read or respond to contact or attempted contact outside of work hours from their employer, or from a third party (eg a client) regarding work matters.
What constitutes ‘contact’ has not been defined but is expected to have a broad interpretation and include calls, texts, emails, messaging services (eg Teams, WhatsApp) and any efforts to engage with employees.
The right to disconnect does not prohibit employers contacting their employees outside regular hours, however, it means employers may need to re-think operations and how they engage with their workforces.
As a result of these changes, an employer must not take adverse action against an employee reasonably refusing contact outside ordinary working hours.
Exceptions to the Right to Disconnect
The right to disconnect will not apply to circumstances in which an employee’s refusal is deemed to be unreasonable.
The Bill contains a non-exhaustive list of factors to be considered in 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 it causes the employee
the extent to which the employee is compensated to remain available to perform work or for working additional hours
the nature of the employee’s role and their level of responsibility
the employee’s personal circumstances; and
whether the contact is required under a State or Commonwealth law.
What can Employers do Now?
Employers can prepare now, to help prevent problems and disputes arising in the future, by:
providing training and information to employees, particularly managers
reviewing employment contracts and position descriptions
reviewing current policies and procedures, and designing new processes to manage communication protocols and expectations.
staying abreast of the Fair Work Commission guidelines which are currently being prepared.
Key Points for Employers
The ‘right to disconnect’ has been made public knowledge by the media. Employees will want to know what it means for them, so open the discussion to help them understand.
Look at all the factors regarding if it's okay to ignore work messages after hours. For senior employees on annual salaries, their access to the right may be limited because their salaries include ‘reasonable additional hours’. These laws are mainly aimed at protecting employees being paid award rates, who may have been expected to be ‘on call’ without further compensation.
As model terms are brought into modern awards, these will be expected to be incorporated into enterprise agreements.
Don’t hesitate to contact us if you would like to know more about how to prepare for these changes. At MJSP Management Consulting, our team includes experts in Human Resources and Workplace Relations, able to guide employers and organisations with these new obligations.