Right to Disconnect – Changes from 26th August 2024
Recent legislative changes (Closing Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024) have granted employees an enforceable workplace right to refuse to monitor, read or respond to contact (or attempted contact) from an employee (or a third party) outside of their ordinary hours (unless such refusal is unreasonable).
The legislation will take effect on the following dates:
- 26 August 2024 for non-small business employers (employers with 15 or more employees); and
- 26 August 2025 for small business employers (employers with fewer than 15 employees).
If you are a small business employer, we will be sending out updates before 26 August 2025.
What is the right to disconnect?
It does not mean that an employer is prohibited from contacting the employee outside their ordinary working hours. Rather, it means an employee has the right not to monitor, read, or respond to communications outside their ordinary hours, if doing so is unreasonable.
Contact could include, but is not limited to emails, phone calls and messages, Teams messages, WhatsApp etc.
Whether refusing to respond to communication is unreasonable will depend on the following:
- The reason for the contact or attempted contact;
- How the contact or attempted contact is made and the level of disruption it is likely to cause to the employee;
- The extent to which the employee is compensated (including non-monetary compensation) to remain available to perform work during the period in which the contact or attempted contact is made or for working additional hours outside the employee’s ordinary hours of work.
- The nature of the employee’s role and the employee’s level of responsibility; and
- The employee’s personal circumstances (including family or caring responsibilities).
It would generally be considered reasonable for employers to contact employees for practical reasons, like rostering or about upcoming shifts, or in an emergency, where there is concern for workplace health and safety.
As an example, it would likely be reasonable to contact a manager to cover a shift when another manager falls ill and the absence of supervision would pose a risk to health and safety whereas it may be unreasonable to contact a manager, after hours, to cover another manager’s shift (one week out).
Why is this right important to observe?
The legislation means that the right to disconnect is now a workplace right within the general protection provisions of the Fair Work Act. That means that employees are protected from disciplinary action, performance management, reduction of hours and/or other actions that have an adverse impact upon their employment if they do not respond to the employer’s communications.
As it important for mental health for employees to be able to ‘switch off’ after hours, if you are not complying with the right to disconnect your employee could be affected and this could create an ‘adverse’ or negative culture in your workplace.
Should a dispute arise, the legislation requires there to be an attempt to resolve the dispute. If this is unsuccessful, either party may apply to the Fair Work Commission to make orders.
What are the next steps?
We recommend that employers should take the following steps to prepare for the changes associated with the right to disconnect:
- Assess whether out-of-hours communication is required and, if so, by whom. This may include monitoring employee’s work activity outside of agreed working hours.
- Review employment contracts to see whether or not there are clauses related to communication outside of working hours and consider amending if needed.
- Review remuneration for employees in respect to out-of-hours communication, to ensure that there is benefit to receiving out-of-hours communication. If there is no remuneration provided, consider the implications.
- Consider updating policies and procedures and / or implementing guidelines that set expectations for all out-of-hours contact and articulate what is expected in respect to such communications.
- Design new processes to manage communications protocols and expectations, minimising impact of communications outside of hours and / or considering an opt(in) method of communication.
- Communicate these changes to Management to ensure that they are across the changes and respect employee’s boundaries and the implications of taking adverse action against employees who opt to exercise their new right.
- Consider workplace culture and, whether changes are required, noting that it may be of benefit to organise training, which highlights the mental health / productivity benefits associated with disconnecting from work, in the event that there is a culture of external communication (out of hours).
We welcome you to contact our team if you have any questions regarding this matter or any other HR concerns.