From today, 26 August 2024, if you employ 15 employees or more, your employees now have the right to disconnect from their workplace out of hours.
In summary, such employees now have the right to refuse to monitor, read or respond to contact or attempted contact outside their working hours – unless the refusal is unreasonable. Importantly, the test is whether the employee’s refusal was unreasonable, and not whether the employer’s contact or attempted contact was unreasonable.
This also includes contact from any third parties associated with the business. Third parties could include a variety of stakeholders of the business such as clients, suppliers or referrers.
What Classifies as ‘Unreasonable Refusal’?
As with many issues, whether the employee’s refusal will be deemed unreasonable or not depends on the circumstances. To determine whether the refusal from an employee is unreasonable, the following questions will be considered:
- What is the reason for the contact?
- What is the nature of the employee’s role and responsibility in the business?
- What are the employee’s personal circumstances?
- How has the contact been made, and how disruptive is it?
- Will the employee be receiving any additional pay or compensation for working additional hours, or remaining available outside of their contracted working hours?
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.
Small Businesses
For employees within small businesses, the right to disconnect does not begin until 26 August 2025. Should you be an owner of a small business, we highly recommend making preparations for the changes now.
What Should Employers Do?
Employers should attend to the following matters as a priority:
- prepare or update policies to take into account the right to disconnect and what falls within unreasonable refusal. For example, a policy that covers the use of work mobile phones, laptops and emails could be a convenient policy to address the new right to disconnect. The policy could set out a guideline 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;
- Monitor work activity out of work hours;
- Educate staff on the new right and policy, including managers and how they can help foster this process;
- Consult with employees regularly. Gain information from employees as to their current workloads and the need to work outside of normal working hours; and
- Prepare a dispute resolution process (and follow it), should there be any conflict with an employee.
How we can help
If you are a business owner and would like to know more about how the new right to disconnect and how to adapt for it, contact our experienced Employment Lawyers on (03) 9481 2000 or info@tauruslawyers.com.au.