It can be delicate dance between employer and employee when it comes to after work contact - In some circumstances, it's just a part of life. You signed up for long hours, and the social morays of the organisation mean that you kind of have pull out your laptop and edit a few slides on the couch while you let the latest Netflix special pass by you. For some others, home time is a little more sacrosanct - the "urgent" 7pm email is preceded by a few apologies, but nonetheless, the client needs these important revisions in the morning so could you please, please look at it tonight?
The recent passage of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, codifies a "right to disconnect" for all employees, and sets a national standard for out-of-hours contact and engagement.
For non-small business employers (15 people or more), the right to disconnect commences on 26 August 2024. For small business employees (fewer than 15 people), it commences on 26 August 2025.
What Employers Need to Know
Understanding the 'Right to Disconnect'
The 'right to disconnect' grants employees the legal right to refuse work-related communications outside of their regular working hours. This includes emails, calls, texts, or messages on work-related platforms with the intention to protect employees from the expectation of being perpetually available, and helping to mitigate work-related stress and mental health issues.
Key Protections
General Protections: Employers cannot take adverse action against employees who reasonably refuse to engage in work communications outside of their ordinary hours.
Fair Work Commission's Role: The Fair Work Commission (FWC) will have the authority to resolve disputes related to the right to disconnect, and will shortly have written guidelines for employers to reference.
Exceptions and Reasonableness: There are circumstances where an employee's refusal to respond may be deemed unreasonable. Factors such as the urgency of the contact, the method of communication, compensation for additional work, and the employee's role and personal circumstances will all be considered.
What you can do now to be ready
Have a look at your contracts and policies: Ensure that employment contracts and position descriptions reflect the new right. Update policies on after-hours communication and ensure they are compliant with the new legislation.
Educate your managers and leaders: Educate managers and employees about the right to disconnect. Training should focus on respecting boundaries and understanding the implications of the new law.
Communicate: Develop clear protocols on after-hours communication to prevent confusion and potential disputes. Establishing these expectations early will help with a smooth transition.
Employee Support: Foster an environment where employees feel supported in exercising their right to disconnect. Make it clear that your organisation is supportive of a healthy work life balance, and make the appropriate support and resources available where appropriate.
What Employees Need to Know
The 'right to disconnect' empowers you to refuse work-related communications outside of your designated working hours. This means you can decline to monitor, read, or respond to emails, calls, texts, or messages on work-related platforms once you have finished your workday. But there are exceptions, which you will need to be aware of.
When Refusal Might Be Unreasonable
While the right to disconnect is broad, there are scenarios where refusing contact might be considered unreasonable. Factors include:
The urgency and reason for the contact.
The method of contact (e.g., phone calls versus emails).
Whether you are compensated for working outside your ordinary hours.
Your role and level of responsibility within the organisation.
Personal circumstances, such as family or caregiving responsibilities.
Awards
All awards will be required to include a ‘right to disconnect term’ by 26 August 2024. This means that specific rules will be added to awards to explain how this new right would apply to different industries and occupations.
Moving forward
As flexible, hybrid and remote working arrangements become more common, these new changes are significant because they signal a shift in the culture, norms and expectations in Corporate Australia and beyond, and creates a framework for both employees and employers to navigate the sometimes precarious waters of out-of-hours communication. These changes affect everyone in the workforce and may even affect you as both a leader and an employee. If you're a leader, ensure that you're working with your HR, Legal, and Workplace Relations teams to understand your rights and responsibilities moving forward. If you're an employee, work with your leaders and your team to understand the protocols for after hours communication, and familiarise yourself with the exceptions that can be applied.
Does this make it easier to ignore the next 7pm work ping that hits you right as you're sitting down for dinner? Well that still depends on a number of factors, but at least soon you'll know that you've got a protected, codified right to disconnect.
If you'd like to look more into the new right to disconnect, this page on the Fair Work Ombudsman's website is a great place to start. It provides an excellent summary of the changes, and a number of resources that you might find helpful.
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Disclaimer: The information in this article is general in nature and is not intended to address the circumstances of any particular person or organisation. Although we work very hard to provide accurate and timely information, we cannot guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future. If you need specific advice, please consult with a Workplace Relations expert.
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