the right to disconnect.
more red tape for employers (and what you need to do about it).
tldr:
Employees will soon be able to ignore attempts you make to contact them outside of their work hours, unless they’re being ‘unreasonable’.
What is considered ‘unreasonable’ depends on various factors, and involves a lot of ‘grey’ (jump to here for the specifics.)
In navigating this reform, focus on the three C’s: culture, contracts and communication.
start with why.
It’s no secret that we’re in challenging economic times where businesses are asking staff to do ‘more’ with ‘less’.
Coupled with the fact that COVID blurred the lines between work and play, and burnout is at an all time high, it’s no real surprise to see the employee ‘right to disconnect’ introduced.
what is the new legislative right to disconnect?
From August 2024 🗓️, employees will have the ‘right to disconnect’ from their workplace outside of work hours.
This right is one of the many workplace reforms the Labor Government has recently introduced via the ‘closing loopholes’ legislation which passed on 26 February 2024 [1].
Under legislative reforms, employees will be able to refuse to “monitor, read or respond to contact, or attempted contact”, from you, or a third party (if related to their employment) outside of their working hours, unless their refusal is “unreasonable”.
The right is also set to be included in Modern Awards from August 2024.
While we are huge proponents of setting boundaries around how and when we work (it’s why we started in house nous), we are not huge fans of this reform.
do employees really need a standalone ‘right’ to disconnect?
Yes and no.
No, because workplace health and safety laws require employers to provide and maintain a working environment that is safe and without risks to health (including an obligation to identify and eliminate ‘psychosocial hazards’, such as long work hours, in the workplace). Employers are also required to ensure working hours are clearly defined and requests tow work additional hours are reasonable.
And yes, because there’s a lot of ‘grey’ (e.g. what additional hours are considered reasonable anyway?), which means that unfortunately (particularly in lower paid sectors) working hours are being poorly monitored and not appropriately compensated by employers.
do you need to stop contacting staff outside work hours?
We’ve been asked this question a lot. Thankfully, the answer is no.
The right to disconnect is not a positive duty on employers. It does not prohibit you from contacting your staff employees outside their work hours (not to be confused with your positive duty to provide a workplace free of psychosocial hazards. Perhaps still delay sending those weekend emails ‘til during the week 😜).
What it does do, however, is allow employees to refuse to monitor, read or respond to your contact, or attempted contact.
when is an employee’s refusal ‘unreasonable’?
Whether an employee’s refusal will be ‘unreasonable’ will come down to the following:
the reason for the contact or attempted contact 🙋🏻♀️;
👉 (yes, for regulatory deadlines; no, because your internal goalposts have shifted)
how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee 📧;
👉 (8am on a Monday to help set priorities for the week, yes; while on leave, no)
the extent to which the employee is compensated💰 (both financially and non-financially):
to remain available to perform work during the period in which the contact or attempted contact is made; or
for working additional hours outside of the employee’s ordinary hours of work;
👉 (think about this in the context of existing policies and practice you have in place regarding
allowances, penalties, time off in lieu, and flexible work arrangements)
the nature of the employee’s role and the employee’s level of responsibility 💼; and
🔥 (we think this is one of the biggest points of contention for you and your staff, particularly if you don’t
have clear contractual terms, a position description and policies)
the employee’s personal circumstances (including family or caring responsibilities) 🏡
👉 (while you might be contacting staff within business hours, it might be outside of their work hours e.g.
flexible work arrangements, leave, etc.).
The above is a non-exhaustive list, which means other matters may also be considered (e.g. past practice/patterns of behaviour).
what is ‘contact’?
At this stage, we can expect ‘contact’ to be construed broadly (it is not defined in the legislation) which means it would include contact via email, phone, text message, application (e.g. Slack) instant messaging (e.g. WhatsApp) and social media.
(Once any cases are decided, we will let you know how this term is to be interpreted. ⚖️)
who does the right apply to?
Right-sourcing with a combination of employees and contractors is how a lot of businesses are staying profitable right now.
The right to disconnect only applies to employees – not contractors.
Don’t get too excited though: your positive duty to provide a workplace free of psychosocial hazards still applies to employees and contractors alike.
what if you and your employee can’t agree on what’s ‘reasonable’?
Don’t worry, the Parliament has got us covered there too (read sarcasm here).
Here’s the prescribed dispute resolution pathway:
First attempt to resolve that dispute at the workplace level (i.e. internally e.g. employee/manager, HR, etc.).
If attempts to resolve the dispute internally fail, you or the employee may escalate the matter to the Fair Work Commission;
The Commission can make an order, or deal with the dispute as it considers appropriate, to resolve the dispute (other than ordering the payment of a financial compensation).
The Commission’s dispute resolution process may be by mediation, conciliation, making a recommendation, or expressing an opinion. The Commission may only arbitrate the dispute (and make binding orders) if you and the employee/consent.
What orders can the Commission make?
The Commission can make orders to:
⏹️ stop you from taking disciplinary action against the employee or requiring them to accept work-related contact, despite the employee’s refusal to do so (where an employee’s refusal is deemed unreasonable); or
⏹️ prevent the employee from continuing to unreasonably refuse contact/attempted contact from you.
The Commission can only make such orders, if there is a risk that either yours, or the employee’s conduct will occur or, continue to occur.
If the Commission does make orders against you, and you fail to comply with those orders, you may face financial penalties.
Sound familiar? This process is consistent with the ‘stop bullying’ and ‘stop sexual harassment’ pathways currently available via the Fair Work Commission.
what other risks are there?
The right to disconnect will also become a new ‘protected right’ for General Protections purposes which means, employees could argue that exercise of their right was the reason why adverse action (e.g. termination of their employment) was taken by you, against them.
when does the new right take effect?
The right to disconnect will become law from:
26 August 2024 (this year) for employers with 15 or more employees (non-small business employers) 🗓️; and
26 August 2025 (next year) for employers with less than 15 employees (small business employees) 🗓️
we feel you: this right is more red tape for employers.
In addition to creating more ‘red tape’ for employers in navigating employee refusals, the right to disconnect has the potential to hinder attempts by employers to create a flexible workplace. This is a culture piece, not a compliance piece.
In our view, the right to disconnect could have the opposite effect, in a market where we know employees now expect more flexible ways of working.
We recognise that in some lower paid industries the right to say ‘no’ to unpaid overtime/after-hours contact is needed by employees, however, we’re not convinced legislation applying to effectively all employers is the answer.
Despite the new right, we recommend that employers take steps to adopt practices which balance the right to disconnect after hours (which is typical of remote working), with the advantages of flexible and remote work. Employees should be given autonomy about how and when they work; but should not be expected to work more hours than they are reasonably compensated for.
It’s not just a retention strategy; its good business.
what should you do to prepare?
Here’s how we recommend you prepare for the right to disconnect:
review how hours of work are expressed in your employment contracts vis-à-vis how individual employees are compensated. Specifically review your ‘off-setting clauses’ to ensure reasonable additional hours are compensated adequately and expectations are set;
review your position descriptions to ensure they reflect expectations around managing deadlines, responsiveness, KPIs and communication (taking into account the right to disconnect and the duty to reduce psychological hazards);
consider updating or introducing policies regarding flexible work and how disputes about the right to disconnect will be managed ‘in house’ (i.e. internal disputes). Create guidelines so that there’s a clear process to be embarked on from the outset. A robust internal resolution pathway before a dispute hits the Commission will go a long way in preventing unnecessary legal costs (saving you approximately $5-30k, depending on whether the matter goes to arbitration);
update your recruitment policies and procedures to be clear from the outset about expectations for out-of-hours contact, particularly where a role will involve being part of an international team. You’d be surprised how many employers we see miss this step as part of advertising a role, the interview process and onboarding;
re-think how your customer expectations are managed by your employees (i.e. what promises do you make to customers about responsiveness as a business?).
up-skill your leaders in having conversations/setting expectations regarding remote and flexible work, and after hours contact.
If nothing else, this new reform is a nudge to recalibrate how you manage your operations, hours of work and KPIs (which really, you should be doing regularly anyway).
The Commission is due to publish Guidelines to assist employers with navigating the new right. We will circulate these when they are released. ☑️
how can we help?
You can book a complimentary chat to discuss how to navigate this new right in your business (or just rant to us about how annoying this reform is). Whether you want a policy or tailored advice, we’ve got you covered.
[1] Fair Work Amendment (Closing Loopholes) Bill No.2 2023
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