Should Australian employers be worried about the new right to disconnect? Or is it a storm in a teacup?
Leading employment lawyer Ross Jackson, partner at Australian law firm Maddocks, says the answer lies somewhere in between. "While there has been a bit of hype surrounding the new legislation, there are also several scenarios that could lead to serious civil penalties for employers found in breach," he says.
It's important to note the new law will not ban employers from contacting staff after hours. Instead, employees will be given the right to refuse to monitor, read or respond to contact outside working hours unless the refusal is unreasonable.
Mr Jackson's advice for employers is to get on the front foot with an audit of staff roles before the law comes into effect on 26 August. He recommends businesses identify employees who may need to be contacted outside normal working hours and ensure their position description not only reflects this but establishes guidelines. For example, employers should discuss with staff what circumstances may trigger an after-hours contact and how that will occur, such as by phone, email, text or a combination.
"Working these things out is incredibly important and it gets back to what I think are the three most fundamental ways to avoid costly disputes: transparency, consistency and predictability. Tell your staff what you're proposing to do and why" Mr Jackson says.
In some cases, staff may request a pay-rise for out-of-hours expectations not previously in writing, and that may be entirely valid.
To minimise the risk of disputes, up-to-date position descriptions are vital.
Mr Jackson says one of the more curious aspects of the right to disconnect legislation is that it appears to enshrine a strange Catch 22 for employees.
"The wording (of the legislation) doesn't say an employer must not unreasonably attempt to contact an employee outside of working hours. Instead, it's framed as an employee right to refuse to monitor, read or respond to attempted contact outside of working hours unless the refusal is unreasonable," he says.
"My point is, how will an employee know whether their refusal is reasonable or not unless they're monitoring and reading to see what they're being contacted about?
"This would seem to contradict the aim of the legislation.
"It's an unusual way to word it and that could cause some problems. We'll have to wait and see how it works in practice."
The Fair Work Commission has begun work to insert a right to disconnect into all modern awards, as required by the Federal Government's Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.
"I also expect there will also be a lot of white-collar industries, particularly in the public sector, where it will be inserted into enterprise agreements," Mr Jackson says.
Disputes over out-of-hours demands that cannot be resolved at a workplace level can be referred to the Fair Work Commission to make a ruling, which, if breached, can result in civil penalties.
Additionally, if an employee feels punitive action has been taken against them at work for rebuffing after-hours contact, they can also make a general protections claim for adverse actions against their employer.
So, there are several possible sources of complaint in relation to the new laws.
The increased prevalence of working from home could also throw up some issues around what is considered outside work hours.
For example, if an employee works from home and has increased flexibility to do school runs during the day, for example, they may have to work additional hours to make up and will need to be contactable during these varied hours.
Even national companies working across time zones (particularly during daylight savings) may run into issues.
"You would expect there's going to be a litigation at some point, and we will need to have judicial decisions before we will know exactly how the law is going to be applied," Mr Jackson says.
For the moment, all employers can do is check their position descriptions, be open with staff about their expectations and why they are reasonable and put written guidelines in place around out-of-office communications.
Fair Work Ombudsman urges education on new laws
www.maddocks.com.au/insights/the-right-to-disconnect
Fair Work Amendment (Right to Disconnect) Bill 2023
The Right to Disconnect is a new employee right that aims to limit `technology creep', in which work phone calls and emails encroach on employee personal time.
Enacting legislation was passed under the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2023 in February and comes into effect on 26 August for businesses with 15 or more employees. Small Businesses (fewer than 15 staff) have 12 months' grace before the law applies to them.
Under the new legislation: "An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable."
In determining whether an employee acted reasonably in refusing to respond to an employer, the Fair Work Commission will consider points such as:
Source: https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc649.pdf
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