Right to Disconnect – What do Australian Employers and Human Resources need to know and 6 Exceptions to the Right to Disconnect

A major change in workplaces has seen the Government introduce and now implement as of 26 August 2024 the new Right to Disconnect laws. ?

The aim of this legislation is foster work life balance for employees however this does create a number of challenges both real and perceived for (non small business) Employers and Human Resources teams.

This is to combat the constant digital connectivity and technology that has all employees linked at anytime with the workplace. The current Government have pushed for the right to disconnect to be in place with their hopes that a legislated move towards a more discernible work life balance will boost productivity.

Small Business Employers will have until 26 August 2025 to prepare for the new right to disconnect laws.

What is the Right to Disconnect?

At the core of the right to disconnect is the unequivocal workplace right for an employee to not monitor, read, or respond to any work-related communication from their employer after hours.? This does include contact from parties who are not the employer but related to work such as clients and customers. ?

This law does not outright prevent employers from attempting to make contact with employees but it does ensure that employers cannot take adverse action because an employee has exercised a right to disconnect.? This is integral as it opens up a number of potential different claims with General Protections disputes the major one.

This means, employees can reasonably refuse to engage in any after hours work communication.

The Employer exception – Reasonableness of Refusal

There are exceptions for employers where the refusal to connect must be reasonable.

Several factors determine reasonableness:

1.?Urgency and Importance of the contact:?

What needs to be considered here is whether the contact made was for something that would significantly impact the business or there was a time pressure element. Urgent projects, matters, correspondence and communication will deem it unreasonable to refuse to disconnect

2.?Nature of the Employee’s Role:?

The nature of the employee’s role may require communication to be monitored, read and/ore responded to. The seniority and type of position will also play a part as to whether the employee’s role would reasonably require an employee to be contactable outside of work hours.

The Fair Work Ombudsman gives an example of a specialist technical engineer being available to respond to critical technical outages. Another example might be an employee who undertakes work for a company which has overseas subsidiaries or overseas clientele and is required to work across several time zones.

3.?Frequency of Contact:?

Sporadic and essential communication may be considered reasonable. To be clear, the right to disconnect does not prevent an employer contacting an employee.? In particular, if there is very little contact outside of work hours but it may be essential to do so at times then this will be considered reasonable. What will be important is the expectations that are set down by an employer for this sporadic contact.

4.?Employee Paid for out of work hours contact:

If an employee is compensated for after work hours contact such as on call allowance or even overtime paid then it will reasonable for an employer to expect that the employee will be contactable.

The salary or remuneration of an employee will also play a part and employees in executive, management and senior roles would reasonably the expected to not refuse to connect.

The terms of an employment contract may be more robustly prepared to make this more clearer. ?

5.?Personal Circumstances:?

An employee’s personal circumstances may prevent an employee to monitor, read or respond to any work related communication.? Employers must consider family responsibilities or health issues as well as other personal circumstances in considering whether any refusal is reasonable.

6.?Legal Requirements:?

There may well be legal obligations that necessitate after hours contact.

Employees that work for emergency services and similar types of work may be legally required to be contactable outside of work hours.

Dispute Resolution

Disputes about what communication is reasonable to refuse or not can be brought as a dispute in front of the Fair Work Commission.

Initially disputes should be attempted to be resolved in the workplace but any unresolved disputes can be escalated to the Fair Work Commission.? The Fair Work Commission has the powers to:

·?????? Mediate

·?????? Conciliate

·?????? Arbitrate (by consent)

·?????? Make an order to stop refusing certain contact

·?????? Require an employer to stop certain contact attempts

·?????? Make an order for an Employer to cease disciplinary action against an employee for refusing contact

·?????? Issue Penalties

Modern Awards and the Model Term

The model term can be found here.

There has been consideration for on-call, emergency and call back to work contact outside of work hours in the model term.

An interesting clause is the following:

“An employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act”

This places a potentially higher burden on employers under modern awards wherein the current legislation does not do so.? As this places an additional burden on the employer not to directly or indirectly prevent an employee from disconnecting.? Arguably this opens the door to the exceptions being given lesser value when it comes to any modern award covered employees. ??

Key Implementation considerations

It is clear that changes will likely need to be made in a workplace.?

Some advisors, lawyers and consultants seem to genuinely believe that very little steps need to be taken to comply with the right to disconnect.? In my view, I must respectfully disagree.

There may well be Employers and workplaces that have unwritten rules or even common practices about communication outside of work hours.? Most employers may well unlikely contact staff outside of work hours or require employees to talk to customers and clients outside of the hours unless it was urgent or an absolutely requirement of the role.

However, the Right to Disconnect laws provide absolute clarity for all workplaces.? The intention of the laws or at least the public rationale is to boost productivity and provide further work life balance.? It may or may not do this, the important part however is that the changes are here and pro active steps should be taken by HR right now to ensure compliance and to ensure all people managers will be able to comply.

Being pro active means understanding the laws as a first step, secondly how will it effect the workplace, what changes will need to be made and having a look at some of the steps below.

Here are some steps all Employers and HR should take right now:

1.?????? Review employment contracts especially around duties, responsibilities and expectations of work

2.?????? Develop policies to clearly outline the boundaries of communication outside of work hours

3.?????? Technology solutions will need to be considered and how this will help or hinder compliance with the right to disconnect laws

4.?????? Management Training is going to be integral in terms of the workplace rights and responsibilities that come with this new right to disconnect

5.?????? Managerial Guidance and equipping people managers with tools and training will be a delicate balancing act with KPIs, targets and productivity goals

6.?????? Flexible work arrangements and considering what will be allowable under the new regime is integral

Written by

Jonathan Mamaril

Employment Lawyer

MCom GDLP LLB BA