Insights

Navigating Australia’s Right to Disconnect: A Guide for Employers

7 May 2024

The Australian Government recently passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 AKA the right to disconnect. The good news is that the right to disconnect (RTD) is not a prohibition.  Rather, it is a workplace right primarily designed to protect employees who have historically been expected to be available after hours without further compensation. It will remain acceptable to contact an employee outside their usual hours if such contact is reasonable.

Now is the perfect time to prepare and audit your current practices so that you can navigate this new right with ease.  Businesses with more than 15 employees will need to be prepared by 26^th August 2024.

What is the Right to Disconnect?

The RTD will allow an employee to refuse to monitor, read, or respond to contact from their employer outside of work hours unless the refusal is unreasonable. This right will apply to any form of communication including emails, texts, Microsoft Teams, Zoom and phone calls that occur after hours. Because of where this right sits in the Fair Work Act (part 3-1 to be precise), employers can’t take adverse action against an employee who reasonably refuses contact outside of work hours.

As well as being a general protection, an employee will be able to able to seek a stop order from the Fair Work Commission preventing their employer from continuing to require them to connect outside of their usual working hours and/or from taking disciplinary action in respect to their refusal.  The RTD will also be a consideration in unfair dismissal claims as refusing out of hours contact will no longer be a valid reason to terminate an employee (unless the refusal was unreasonable).

The Exceptions and Factors to Consider

Some good news for businesses – the RTD will not apply if refusal is unreasonable. Some things to consider as to whether refusal is reasonable or not include:

• The reason for contact;
• How contact is made;
• The level of disruption caused;
• The extent to which the employee is compensated:
  • to remain available to perform work during the period in which contact is made
  • for working additional hours outside of ordinary work hours;
• The nature of the employee’s role and level of responsibility;
• Personal circumstances and any flexibility arrangements; and
• Whether contact is required under the law (if so, refusal is unreasonable)

Also note that the compensation for an employee to remain available outside their ordinary working hours can include non-monetary compensation (e.g. additional time off, flexible working arrangements, tangible rewards etc.)

What does this mean for my business?

Looking at these factors, it’s likely not an issue to:

• contact an employee outside of work hours for important and urgent work matters – for example, to cover a shift;
• contact an employee outside of business hours where that employee works flexibility, and the contact is during their contracted flexible hours; or
• contact an employee on an annual salary with high seniority outside normal working hours where such contact is commensurate with their position and responsibilities.

The principal focus of the RTD is to prevent employees working outside their regular working hours without compensation.  Key employees covered by the RTD are therefore employees paid at award rates. Nevertheless, to ensure your business is protected, you will be required to fundamentally re-think operations and reconsider how you engage employees and do business with clients.  If your business has an international focus, you’ll also need to consider how this right will impact the expectation for employees to be available for international calls outside of business hours.

When will the Right to Disconnect Commence?

Depending on the size of your business, the right to disconnect will commence for you on:

1. 26^th of August 2024 for businesses with more than 15 employees; or
2. 26 August 2025 for businesses with 15 employees or less

The Next Step for Employers – How Can You Prepare?

The Fair Work Commission is expected to publish guidelines on how the RTD will operate in the coming months.  In the meantime, to safeguard your business from the potential RTD minefield, you should:

• Review your employment contracts – specifically any salary or renumeration and duties clauses to determine if your employees are renumerated with the expectation to be contactable after-hours.
• Review and create policies and procedures around employees using technology and being contactable and working outside agreed hours.
• Train your staff about the new RTD – in particular, make sure managers and senior staff know not to take disciplinary action against employees who reasonably refuse contact outside of work.
• Update recruitment policies and procedures – make sure they have clear expectations for after-hours contact
• Update or create processes around communication protocols and expectations.
• If possible, monitor any work activity that occurs outside of normal working hours and encourage employees to schedule emails to send during work hours only;
• If necessary, restructure and review your performance management processes to take into account the new RTD
• Foster and create a work culture that promotes mental health and respectful boundaries.
• Consider the RTD when negotiating with clients and manage client expectations alongside the RTD.

If you’re not sure where to start with auditing your business to accommodate the RTD then don’t hesitate to contact us.