Within the media, there has been a lot of talk about the Right to Disconnect legislation. With sensational headlines abounding, it would be fair to think that any and all after hours communications with employees will be completely out of bounds once this legislation goes live. That is not actually the case so let’s take a look at what’s really happening and put some clarity around some of the misconceptions out there.
When will the Right to Disconnect commence?
As of 26th August this year, a new Right to Disconnect entitlement will be added to the Fair Work Act as a part of the Closing the Loopholes legislation.
Note that for small businesses (those with less than 15 employees), the legislation will come into effect in August 2025.
Why the need for the Right to Disconnect?
It’s important to understand that for some, there is a genuine need to define the boundaries of acceptable behaviour when it comes to when we might want to communicate with employees and colleagues. In the main, people do the right thing but there are always those who will look to take advantage and it is for them that we need to impose a legislative right to disconnect from work for all.
Take it also as a reminder that in this fast paced, always on in a connected sense world that we now live in, it’s important to have the opportunity to clearly delineate between our time spent on work and the time we need to allow for life – sport, kids, relaxation and all the other things that fill our cup and make us better employers and employees.
What is the Right to Disconnect?
It’s really simple. The Fair Work Act will give most employees the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of working hours, unless such refusal is unreasonable. Further, this right extends to third parties where the contact is related to work.
What is reasonable after hours contact?
Everyone has their own interpretation of what is reasonable, but the Fair Work Act will stipulate a number of factors that may help determine if refusing contact is unreasonable including:
- The reason for the contact
- The method of contact and the level of disruption it causes (for example, an email is less disruptive than an SMS or phone call).
- Whether the employee is paid to be available or is paid for additional hours worked.
- The nature of the role and the level of responsibility held by the employee.
- The employees’ personal circumstances (including family or caring responsibilities).
Employers can no longer contact employees after official work hours
Yes, you can! Keep in mind though that just because you’ve chosen to shoot out an email at 9pm, your employee has the right to have their emails turned off and can’t be penalised for doing so.
Unless…. the employee is on call or there may be an agreed provision in their contract or EBA that deems such contact to be reasonable, or their role, level of responsibility and remuneration warrant they are the responsible person to act on or respond to particular matters for the workplace.
The Fair Work Commission (FWC) would expect that an employee is fairly compensated in such cases. For example, the FWC would not agree that a clause in an employment contract requiring after hours communication was fair and reasonable for an employee earning the minimum wage. On the contrary, it would be reasonable that an employee who earns above Award, and is fairly compensated for additional hours of work, may be required to monitor and respond to a reasonable level of communication out of normal work hours.
There goes my flexibility as an employer
No, not really the case. We’ve seen a lot of change over the last few years with the acceleration of the acceptance of hybrid work, adoption of variable working hours, alternative options with controversial public holidays and so on. Flexibility is a key focus of many high quality candidates we speak with when recruiting on behalf of our clients so it would be mad to go back to the old days of rigid work practices.
In fact, there is Australian research conducted at the UNSW that shows that flexible work, while hugely positive, can also impact on the ability to disconnect. Hands up those who sometimes struggle to move away from the desk at the end of the day as you just want to get that one thing finished. Guilty as charged.
The right to disconnect allows colleagues as well as employers, know and understand what the agreed communication timeframes are, providing clarity and boundaries. For example, some businesses have made it clear that no emails are to be sent, or responses expected after 6pm. Some may choose to work past this time but they might choose to schedule emails so their communications send the next day, when someone is likely to be back at the desk, rather than in the middle of the night, which could cause rise to unnecessary anxiety in the recipient. Or they understand that colleagues won’t be monitoring or responding until the next business day because it is agreed that employees turn off notifications outside of ordinary business hours.
However, a senior employee responsible who is the primary contact for employee’s or client relations, who is informed of the expectation of the role and who is duly remunerated, may be reasonably responsible for and expected to, respond to particular matters for the workplace outside of ordinary working hours.
Yes, there are consequences and potential penalties
Where an employer and employee disagree as to what constitutes “reasonable contact” and in the event the parties cannot resolve the dispute, either the employer or the employee may apply to the Fair Work Commission to make a ‘stop order’ (orders to stop refusing contact or to stop taking certain actions) and/or otherwise deal with the dispute.
This legislation provides an avenue for the FWC to impose civil penalties of up to $18,780. Also penalising or terminating someone’s employment if they were found to have reasonably invoked their right to disconnect can leave employers open to a general protections claim so it is wise to be across this legislation
Prepare now for the Right to Disconnect
There are a number of steps employers can take now to prepare for the Right to Disconnect legislation comes into force:
- Review current work practices and have a clearer understanding as the business needs as they relate to out of hours communications. Remember to include business needs as they apply to overseas employees or contacts and the need to allow for differing time zones.
- Review employment contracts – do they allow for reasonable out of hours communication and is it appropriately reflected in the individual’s remuneration? (I.e. Do you have roles that sit just on award rates or does the compensation allow for reasonable additional hours work outside of normal working hours?)
- Review policies and address use of work technology outside of regular working hours.
- Ensure leaders and managers are modelling appropriate behaviour when it comes to out of hours communications. If it works for a leader to sort their emails out of regular hours, if it can wait, they may want to consider ‘scheduling’ their send time, so it hits the recipient's inbox within working hours. Another option is to add a standard note at the bottom of their email template. This can let the recipients know that communications sent outside regular work hours is something that works for the sender, but they do not expect an immediate response and/or set the expectation that employees may elect to turn off notifications on mobile devices
Disconnecting from work and engaging in other facets of life delivers better balance, which in turn supports happier and healthier employees. While this right has now been legislated, factor in common sense and build a culture of respectful communications during, as well as outside of, work hours.
As always, contact the HR Staff n’ Stuff team should you require any assistance with creating a policy, position descriptions or employment contracts that recognise this new right while supporting the needs of your business.
