In this article we explain the new right to disconnect, and what employers and employees need to do.
Although it has triggered plenty of public debate, the new right cannot be exercised unreasonably, and well-informed employers and employees should be able to address it effectively.
The changes in the ‘Closing Loopholes No. 2 Act’ have been passed into law and most of the changes will commence in 2024.
In previous articles we explained the key changes to casual employment and independent contracting.
The ‘Closing the Loopholes’ changes – don’t be casual about casuals…
The ‘Closing the Loopholes’ changes – don’t be casual about independent contractors
What are the ‘Right to Disconnect’ Changes?
The New Right
The new laws will allow an employee to refuse to respond to contact or attempted contact from their employer or third parties about work outside their working hours, unless the refusal is unreasonable.
When is a Refusal Unreasonable?
Assessing whether a refusal to respond to contact is unreasonable requires taking into account:
- If the employee is paid to remain available to work outside their working hours;
- The employee’s position and level of responsibility;
- The reason for the contact and how it is made;
- The level of disruption caused to the employee; and
- The employee’s personal circumstances including family or caring responsibilities.
By their nature some positions can be more likely to involve out-of-hours contact.
For example, the Health Professionals and Support Services Award 2020 and the Social, Community, Home Care and Disability Services Industry Award 2010 address some out-of-hours situations such as on-call availability.
The right to disconnect does not apply where contact is required by law.
What is Restricted?
An employer does not contravene the laws by contacting or attempting to contact an employee out of hours.
What an employer will be prohibited from doing is dismissing, or taking other adverse action against, an employee who reasonably refuses to respond to out-of-hours contact.
How are Disagreements Resolved?
An employer and employee that disagree about whether the right to disconnect applies must first attempt to resolve the dispute within the workplace by discussions. If the dispute remains unresolved, either can apply to the Fair Work Commission to resolve the dispute.
The Commission can:
- If the employee has unreasonably refused contact, order the employee to stop refusing to respond.
- If the employee has reasonably refused contact, order an employer to:
○ Stop requiring the employee to respond to contact; or
○ Not take disciplinary action against the employee on the basis of a reasonable refusal.
Contravening an order of the Commission risks a civil penalty.
When do the New Laws Take Effect?
The new laws outlined above will come into effect on 26 August 2024.
Do the New Laws apply to Contractors?
No.
What Should Employers and Employees Do?
Employers should:
- Consider what out-of-hours contact they expect and if that contact is remunerated.
- If out-of-hours contact is remunerated, check that this is clearly stated in the employment contract.
- Consider making out-of-hours contact expectations explicit when advertising for positions, and talk about out-of-hour expectations up front.
Employees should:
- Understand how the new laws may apply to their situation.
- Carefully consider any expectations around out-of-hours contact that are stated in an employment offer.
Some more information is available here or you can book online for an initial no-obligation chat about reviewing an employment contract or contractor agreement.