Call when you want, but there's no one home, and you're not gonna reach my telephone! The "Right to Disconnect" becomes law
Employees will have the right to disconnect from work outside normal working hours, after amendments to the Fair Work Act 2009 (Cth) were recently passed.
Importantly, nothing in the new law suggests that an employer cannot contact an employee outside of their normal working hours. Rather, the amendments mean employees may refuse to monitor, read or respond to contact, or attempted contact, from an employer or third party outside of the employee’s working hours unless the refusal is unreasonable.
The right to disconnect will commence in 6 months' time.
What's considered reasonable CONTACT?
The new section sets out a non-exhaustive list of matters to be considered when determining whether an employee's refusal is unreasonable:
the reason for the contact or attempted contact;
how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
the extent to which the employee is compensated:
(a) to remain available to perform work during the period in which the contact or attempted contact is made; or
(b) for working additional hours outside of 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).
Likely consequences of the new law
The Fair Work Commission will have the power to make a "stop order", to either prevent the employee from continuing to unreasonably refuse contact, or to prevent the employer from continuing to require contact. A breach of an order may attract civil penalties under the Fair Work Act.
In the vast majority of work relationships, it will be business as usual. However, employers may have to think twice about the necessity to contact their employees outside of their normal work hours, and to ensure that they respond appropriately to any request by an employee to limit or stop such contact, to avoid an escalation of the dispute to the Fair Work Commission.
What can you do now to prepARE FOR THE CHANGES?
Employers should take steps now to prepare for the new right to disconnect, which may include:
considering updating or introducing policies regarding out-of-hours contact;
reviewing current workplace practices, communication protocols and policies; and
provision of training to management regarding the right to disconnect and the appropriate management of any complaints, or requests to disconnect.
If you or your clients have a question or any dispute with an employee about the new laws, or would like assistance in relation to any of the above steps, please contact Dean Schubert and our Employment team for support.
The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.
contact
Dean Schubert
Senior Associate
E dxs@bwslawyers.com.au
P 02 9394 1048
Annette Pabla
Lawyer
E anp@bwslawyers.com.au
P 02 9394 1029