As many of you will have seen in the media earlier in the year, the ‘Right to Disconnect’ was a hot topic. Doing a deal with the Greens and Crossbench, the Labor government introduced this new right into the second part of their Closing Loopholes industrial relations legislation which was passed in February.
Yes, this is yet another piece of compliance legislation that organisations need to think about when managing their people. So let's take a look at what the legislation says about the Right to Disconnect and what it may mean for your organisation.
Why Do We Need a Right to Disconnect?
The legislation stems from an interim Senate Select Committee report to the Federal Parliament back in October 2022 and aims to address the increasing challenges posed as our work and personal lives become increasingly blurred. Think about the effect of COVID in terms of remote work, post-COVID hybrid working, the greater use of ‘always on’ technology allowing us to access work and you will see why the issue has raised its head.
The new laws which are effective from 26 August 2024, are aimed at limiting the out of hours accessibility organisations have to contact their people.
What Is the Right to Disconnect?
Originally and as envisaged by the Greens, the Right to Disconnect was to be a prohibition on contacting workers at all outside work hours. However, the final version in the legislation has been greatly watered down.
Rather than prohibiting employers contacting workers, the legislation gives the right to employees to refuse to respond to any form of contact made outside of their working hours, unless the refusal is unreasonable.
So rather than an outright ban on out of hours contact, employers must simply realise that an employee can, if they wish, refuse to take calls, read emails and respond either to the employer or a client.
When Is the Right to Disconnect Unreasonable?
Given employees cannot refuse to take calls and emails etc. if it is ‘unreasonable’, let's look at what this could mean. In deciding if a refusal is or isn’t reasonable here are some things that need to be considered:
- What is the reason for making contact? For instance it is urgent or non urgent
- How is the contact made and what disruption this may cause? Of course, the amount of disruption could be different depending on when the call is made (day or night time) and what the employee is doing at the time.
- Is the employee compensated to be available e.g. an on call allowance would make contact seem more reasonable.
- How senior is the employee? The more senior, the more reasonable out of hours contact may be.
- What are the employees' personal circumstances? For instance what family or carer responsibilities do they have, remembering this can change on a regular basis.
While the government did suggest the right is not meant to limit calls in an emergency or to check on shift availability for instance, there is nothing actually written into the legislation covering these things.
As always, time will tell and we will only know more as cases pass though the legal process.
What Are the Risks?
An employee wishing to exercise this right needs first to inform their employer. If there is a dispute the legislation wants it resolved as far as possibly at the workplace level.
If this can’t happen then either an employee claiming the right or an employer claiming it is unreasonable, can apply to the Fair Work Commission for an order to allow or deny the refusal.
At this stage of the process there are no legal penalties, so resolution via an order is not expensive.
However consider these two scenarios:
- Refusing to uphold an order can result in a fine
- Any action taken against an employee because of their reasonable refusal would be seen as an adverse action because the employee has exercised a workplace right. An adverse action could be dismissal, disciplinary action, lack of promotion, an effect on their employees in terms of performance scores and salary increase or bonus etc. This could lead to a General Protections claim by the employee which means the employer has to prove they haven’t breached the employees rights. Damages for general protections claims are not capped, so the risk could potentially be serious.
What Should Employers Do?
Consider the following actions:
- Ensure everyone is clear about work hours and work expectations
- Consider a policy that covers the right to make contact outside or working hours, in what circumstances would contact be made and what are the expectations
- How does the Right to Disconnect affect current arrangements around working from home, hybrid working etc?
- Ensuring all managers are aware of what they can and cannot expect in terms of contacting employees out of hours
- Ensuring a refusal to connect is not impacting any employment decisions e.g. pay, bonus, redundancy, promotion etc.
- Think about ‘scheduled send’ capabilities for your email and messaging services and ensuring these are used when drafting communications that would otherwise be sent out of hours. For example if you are working on the weekend, ensure your communications do not go out before Monday.
Where To Now?
The Right to Disconnect is only one of a huge range of new and upcoming legislation. Employee Matters has created an ER Legislation Resource Hub to help you stay up to date with all the changes and we are here to guide you through what you should be doing from an HR perspective to ensure you remain compliant and avoid costly legal action.
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Disclaimer Statement:
Being general information pertaining to the field of human resources management, the information in this blog article does not constitute specific legal advice and should not be relied upon as such. Employee Matters is not a legal firm and does not purport to give legal advice. We will happily provide you with general legal information on employment related topics and if we feel you need specific legal advice, we will inform you of this and can refer you to independent specialist employment law firms, as necessary.