The Right to Disconnect - What Does This Mean for Employers
The ‘right to disconnect’ took effect on 26 August 2024. Employers should familiarise themselves with their responsibilities and anticipate employees exercising this workplace right.
Understanding the Right to Disconnect
The right to disconnect is a new workplace right which applies to all employees. Employees now have the right to refuse contact outside their working hours unless the refusal is unreasonable. This means an employee can refuse to monitor, read or respond to contact from an employer or a third party, such as a client – provided their refusal is not unreasonable.
The concept of an employee right to disconnect is not a novel concept. Countries like France, Italy, and Spain have implemented similar laws previously. The proliferation of remote work and digital communication platforms has obscured the boundaries between work and personal time. The right to disconnect responds to these changes by imposing boundaries between work and personal time within the parameters of the law.
The right to disconnect is solely at the discretion of the employee. Should an employee choose not to participate in work-related correspondence beyond their regular hours, and such a decision is not unreasonable, the employer must not take adverse action against them because they have exercised this right.
When is it Unreasonable for an Employee to Exercise this Right?
There is still limited guidance on what constitutes an ‘unreasonable’ refusal to engage in work-related contact outside of working hours. However, the Fair Work Commission (FWC) must consider the following factors when determining whether an employee’s refusal is unreasonable:
the reason for the contact;
how the contact / attempted contact is made and the level of disruption caused to the employee;
whether the employee is compensated for being available outside of normal hours or for working additional hours;
the nature of the employee’s role and responsibilities; and
the employee’s personal circumstances (including family or caring responsibilities).
The FWC is expected to provide more clarity once it has observed how the right to disconnect functions in practice and as relevant cases emerge. A right to disconnect clause has now been included in all Modern Awards and this right applies to all employees. However, the right applies to all employees not just those covered by a Modern Award.
Disputes regarding the exercise of the right to disconnect can be referred to the FWC for resolution. Additionally, employees who face adverse action for exercising this right may file a claim within the FWC’s general protections jurisdiction.
Respond to the Right to Disconnect
As these changes have now commenced, we recommend that employers:
Educate managers about the right to disconnect and how it applies within your organisation. Training programs can help avoid adverse actions that could arise from an employee exercising this workplace right.
Identify if and why employees are being contacted outside of their working hours. Assess whether this contact is operationally necessary or simply a matter of convenience.
If out-of-hours contact is not essential, consult with the affected employees to explore alternative arrangements.
Ensure that employees expected to engage in out-of-hours contact are appropriately compensated. This could include a salary that accounts for out-of-hours work or specific allowances for being on call.
Discuss and agree with employees on expectations regarding out-of-hours work. Document these expectations in position descriptions and employment agreements where necessary.
Begin an ongoing consultation process to address the right to disconnect, as both business needs and personal circumstances may evolve over time.
Ultimately, the right to disconnect should not pose a substantial disadvantage to most employers. Instead, it offers an opportunity to foster a healthy work environment by engaging in open and transparent consultation with employees to understand what is reasonable and unreasonable, considering each employee's personal circumstances. This also aligns with global trends towards enhancing work-life balance and employee well-being. It is essential to initiate and maintain an ongoing consultation process from now on.
For further information please contact:
Jordan Bauer
Senior Associate
M: 0447 710 137 | T: 03 9611 0130
E: jbauer@ha.legal
