The political news of the week has all been about the impending new ‘Right to Disconnect’ law that seems certain to pass into law. The new right has been included in the second wave of the Government’s Closing Loopholes legislation which has the support of the Greens and the crossbench in the Senate and has passed the Senate.
It comes as part of massive changes to employment legislation either already introduced over the last 18 months or about to pass through parliament.
What do business leaders need to know about this new workplace right?
The first thing to note is this is not an outright ban on employers contacting their workers out of hours. Instead it creates a right for employees to refuse to monitor, read or respond to contact from their employer “unless the refusal is unreasonable”.
This reasonableness test creates both flexibility for employers but also uncertainty. There is no simple test as to what is reasonable but there are a range of factors which may make communications out of hours reasonable such as:
- Is there a good reason for the contact?
- How do you make contact?
- How disruptive is the contact?
- What is the compensation arrangement for the employee e.g. is there an on call allowance on offer or how well is the employee paid?
- The employee’s role and responsibilities e.g. are they a senior manager?
- Does the employee have carer responsibilities
Other exclusions include required actions relating to Workplace Health and Safety or required under another law.
What happens if you are in breach of the legislation?
The main enforcement method envisaged in the legislation is to grant the Fair Work Commission the right to enforce a “Stop Order”. A stop order can:
- Stop an employee unreasonably refusing to be contacted outside working hours
- Stop an employer contacting an employee outside working hours
- Stop the employer taking action against the employee who thinks refusing contact is reasonable
- Any other orders the Commission think necessary in support of the the stop orders
Fines of up to $18,780 can be imposed for breaching these Stop Orders.
Where to from here?
The right to disconnect will come into place six months after the Bill is passed into law, but for small businesses (less than 15 employees) a further 12 months will be given before the right becomes active.
What should businesses be doing right 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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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.