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Employees will shortly have the right to disconnect from their workplace – out of hours.

The Right to Disconnect Bill (The Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023) has recently passed the Senate, which is a very big change to employee rights.  Employees will not be required to monitor, read or respond to work communications from their employer outside of work hours, which are unreasonable.

This legislation will be coming into effect shortly, so it is important that all business owners are prepared and put policies in place to address out of hours communication.

What is the Right to Disconnect?

The Right to Disconnect has two parts:

  1. The right for an employee to refuse to respond to contact from their workplace out of hours; and
  2. The right for an employee to refuse to respond to contact from a third party relating to their employment;

unless that refusal is unreasonable.

Third parties could include clients, suppliers or referrers of the business.

It is very common for clients to contact staff outside of work hours, believing that their matter is urgent. Many companies expect that these matters be attended to, irrespective of the individual employee’s circumstances.

It is important that employers and employees understand that the right only applies so far as it is reasonable for the employee to refuse the contact. To manage this, employers should set parameters around what they consider reasonable in a company policy.

How will the Right be Enforced?

If an employee is consistently contacted by their employer or manager out of work hours, they will be able to contact the Fair Work Commission for a ‘stop order’. This is similar to the stop orders the Commission currently make for bullying and sexual harassment.

In considering whether to make an order, the Fair Work Commission will take into account:

  • The reason for the contact;
  • Whether the contact was unreasonable;
  • How often the employer/manager was contacting the employee;
  • The extent to which the employee is compensated;
  • The nature and responsibilities of the employee’s role; and
  • The employee’s personal circumstances.

In relation to compensation, it doesn’t need to be monetary, it could be non-monetary compensation such as flexible working arrangements or time off. In the coming years, the decisions of the Commission will provide further guidance – however, our initial view is that time in lieu is likely to be a popular remedy. We assume that monetary compensation will be reserved for the most severe or flagrant breaches.

Despite the initial reforms calling for criminal penalties, it has just been announced that no criminal penalties will apply to employers who breach the right to disconnect.

Effect on other Rights

The new right to disconnect will be treated as a workplace right under the employment legislation. This means that an employee could bring a general protections claim against their employer if their employment is adversely affected (for example, they are terminated) because they exercise their right to disconnect.

What Employers Should Do  

As this is coming into effect soon, we suggest that businesses immediately:

  • Prepare a new policy on the right to disconnect and what falls within unreasonable refusal. For example, the policy could set out a checklist for what is an unreasonable refusal, considering the time of the contact, the frequency of the contact, an assessment of whether the contact is urgent and whether it could have been made within business hours;
  • Amend any existing policies covering the use of work mobile phones, laptops and emails;
  • Monitoring work activity out of work hours;
  • Educating staff on the new right and policy;
  • Gain information from your employees as to their current workloads and the need to work outside of normal working hours; and
  • Provide employees with training on balancing their workload and prioritising mental health.

How we can help

If you are a business owner and would like assistance updating your existing company policies and implementing a new right to disconnect policy, contact our experienced Employment Lawyers on (03) 9481 2000 or info@tauruslawyers.com.au.

Posted by Taurus Legal Management