The right to disconnect – workplace right commences
All modern Awards have been amended to include a clause on the right to disconnect.
What is the right to disconnect?
It is an employee workplace right which protects employees who refuse to monitor, read or respond to contact or attempted contact outside their working hours, unless their refusal is unreasonable. Importantly, the workplace right extends not just to the employer seeking to make contact, but also to another person, such as a client or customer, where the contact is work related.
When can employees exercise this workplace right?
Employees can exercise the workplace right, provided it is not unreasonable in the circumstances for them to do so. The following matters will be relevant to determining if a refusal is unreasonable or not:
- the reason for the contact or attempted contact
- how the contact or attempted contact is made and the level of disruption it causes the employee
- the nature of the employee’s role and their level of responsibility
- the employee’s personal circumstances, including family or caring responsibilities
- whether the employee is compensated or paid extra for: – remaining available to work when the contact or attempted contact is made, or – working additional time outside of their ordinary hours of work.
Other matters relevant to the particular circumstances may also be considered.
What if the employer and employee disagree about if the refusal was unreasonable?
Employers and employees must first try to resolve any dispute about the right to disconnect themselves. However, if this is not possible, either the employer or the employee can ask the Fair Work Commission for assistance.
What can happen if an employer takes adverse action against an employee who reasonably refused to monitor, read or respond to communications outside of their usual working hours?
This new workplace right will be treated the same as all other existing workplace rights. An eligible employee who believes that they have been subject to adverse action (for example disciplined or dismissed) because they reasonably exercised the workplace right to disconnect, can make a General Protections application to the Fair Work Commission. If the Fair Work Commission cannot resolve the issue the matter would normally then be pursued in the Federal Court.
Does this mean employers cannot contact or attempt to contact employees outside of their usual working hours?
In short, no this is not what the new workplace right means. An employer can still make or attempt to make contact with an employee, however if this occurs and the employees reasonably elects not to engage with such communication, an employer cannot take any adverse action against the employee for deciding to exercise their workplace right to disengage from the workplace outside of their usual working hours.
What should employers do now?
We recommend that employers critically evaluate if communicating with employees outside of their normal working hours is, in fact necessary and if so, consult with the impacted employees about how, when and why this might occur.
Some communications occur outside of working hours, for example at the convenience of the author of the communication, or from a different time zone in a global business, which genuinely do not require an employee to read or respond to such communication until the employees next workday. Ideally, employers will be transparent about this and will ensure that employees understand the expectations when such communications appear on their devices outside of their usual working hours, that being, that there is no expectation the employee will engage with the type of communication until they are next at work.
Employers should also be transparent about the types of communications which might occur outside of the employee’s usual working hours that the employer would expect the employee to reasonably monitor, read and/or respond to. Employers should be clear with employees where monitoring, reading and/or responding to such communication is part of their role and either covered in their remuneration or would attract an additional payment if it were to eventuate. Many senior employees are paid a salary in contemplation of them being available outside of usual working hours and this will be an important consideration in determining if an employee’s response to such communication is reasonable or unreasonable.
What’s next
The Fair Work Commission will monitor the implementation of this new workplace right and will in the future provide guidelines to assist employers and employees. It is estimated that such guidelines will be at least 12 months away to enable the Fair Work Commission an opportunity to monitor the workplace right in practice and to identify if there are any barriers to the workplace right operating as intended.
If you have any questions about any of the right to discontent, please contact your usual Forvis Mazars advisor or our HR consulting team via the form below or on:
| Brisbane – Cheryl-Anne Laird | Melbourne – Greg Halse | Sydney – Cheryl-Anne Laird |
| +61 7 3218 3920 | +61 3 9252 0800 | +61 2 9922 1166 |
Author: Cheryl-Anne Laird
Published: 26 August 2024
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