Employment Hero’s Head of HR Advisory answers all of your questions about the Right to Disconnect

Simon Obee is our Head of HR advisory at Employment Hero, working closely with our HR advisory clients. With an extensive background in employment law, he’s devoted to helping SMEs navigate the highly complex Australian employment landscape. In this article he shares his thoughts around the newly introduced Right to Disconnect law, as well as some answers to questions you might have. 

On 26 August 2024, changes were made to employment law in Australia introducing the ‘Right to Disconnect’. This change is one of the most significant in recent years, with a raft of reforms coming into effect under the Closing Loopholes Bill.

Simon has shared everything you need to know, as well as some answers to common questions.

Disclaimer: The information in this article is current as at 26 August 2024, and has been prepared by Employment Hero Pty Ltd (ABN 11 160 047 709) and its related bodies corporate (Employment Hero). The views expressed in this article are general information only, are provided in good faith to assist employers and their employees, and should not be relied on as professional advice. The Information is based on data supplied by third parties. While such data is believed to be accurate, it has not been independently verified and no warranties are given that it is complete, accurate, up to date or fit for the purpose for which it is required. Employment Hero does not accept responsibility for any inaccuracy in such data and is not liable for any loss or damages arising either directly or indirectly as a result of reliance on, use of or inability to use any information provided in this article. You should undertake your own research and to seek professional advice before making any decisions or relying on the information in this article.

What is the right to disconnect?

The ‘Right to Disconnect’ gives an employee a right to refuse to respond to contact from their employer, outside of work hours, unless the contact is deemed to be reasonable.

This means that some employees now have a right to refuse to respond to any communications from their employer (manager / colleagues, etc) and also from third parties connected to their employment (clients / customers / prospective customers).

But, what does the new legislation actually say?

The new right to disconnect will be expressed in the Fair Work Act 2009 as follows:

333M Employee right to disconnect

(1) An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable. (2) An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.

Why was the right to disconnect introduced?

For some time, commentators have been talking about “availability creep” – the idea that employees are being required to be more and more available to perform work and respond to work queries outside of their normal working hours.

Reasons for this include advancement in technology (such as the ability to check work emails and messages on mobile phones), fears about job insecurity (employees don’t want to miss out on being offered a shift because they didn’t respond to a call from work, etc) and the increased instances of employees working from home (which sometimes can blur the line between when work life finishes and home life begins, if not managed well).

Whilst the advancements in technologies that allow for increased remote working are undoubtedly a hugely positive thing for businesses and employees alike, some commentators argue that these things (if not managed correctly) can adversely affect employee mental health (due to not having sufficient time to relax away from work) and also impact employees’ abilities to effectively perform caring responsibilities.

The right to disconnect was introduced to address these matters.

When does the right to disconnect come into effect?

The right to disconnect will be introduced on two different dates, depending on the size of your business.

For employers with 15 or more employees, it came into effect from 26 August 2024.

For employers with less than 15 employees, the right to disconnect will be introduced on 26 August 2025.

How do I know what is deemed unreasonable and reasonable contact?

The legislation above says that an employee may refuse to respond to contact unless that refusal is unreasonable. Or, looking at it the other way around, an employee may only refuse to respond to contact where to do so will be reasonable.

This also applies to refusing to monitor a phone or communication device for contact too (i.e. it needs to be a reasonable refusal).

The key question, therefore, is what is a reasonable or unreasonable refusal to respond to contact?

Helpfully, the new legislation sets out a non-exhaustive list of five matters that must be taken into account when considering reasonableness.

1. The reason for the contact or attempted contact

Clearly the more urgent or business critical the need for the contact is, the more likely it will be deemed unreasonable to refuse contact.

2. How the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee

An email to an employee just after they have finished work is likely to be more reasonable than a phone call in the middle of the night.

3. The extent to which the employee is compensated: (i) to remain available to perform work during the period in which the contact or attempted contact is made; or (ii) for working additional hours outside of the employee’s ordinary hours of work

If the business is able to allocate some sort of extra payment for the employee being “on-call” or for work performed outside of their normal working hours, then it will be more reasonable to require them to be contactable.

Similarly, if an employee’s salary is expressed to include consideration of an amount of out of hours contact, this will support the view that this contact is reasonable.

Businesses should be aware that some modern awards already include requirements for employers to pay “on-call’ allowances, or to compensate for work performed after an employee’s normal hours have finished.

The Fair Work Commission updated all modern awards on 26 August 2024 to include clauses dealing with the right to disconnect. For example, that it will be reasonable for an employee to be required to respond to contact, and to monitor for contract, out of hours, when the employee is in receipt of an on-call allowance under the award.

4. The nature of the employee’s role and the employee’s level of responsibility

For some roles it will always be the case that a degree of out of hours contact is necessary to be able to perform the role, e.g. a manager who is responsible for rostering and has to manage situations such as an employee calling in sick the night before their shift.

Another example might be someone working in a global business where their role requires them to speak to colleagues and clients in other timezones which fall outside of their usual working hours.

It would also seem that, generally speaking, the more senior the employee is, the easier it would be to justify that some out of hours contact is required of the role, particularly to deal with emergencies and other unexpected events in the business.

5. The employee’s personal circumstances (including family or caring responsibilities)

The reasonableness of any out of hours contact will be impacted by the employee’s personal circumstances. The most obvious example of this will be where this negatively impacts an employee’s caring responsibilities.

For example, it will be less likely to require an employee to be contactable in a period where the employer knows they are looking after their children than in a period where they are not.

So is it really illegal to contact your employees outside of hours?

No.

The legislation operates so that an employee has a right to refuse to respond to contact from their employer outside of their working hours, but there is nothing in the legislation that says an employer cannot try and communicate with an employee outside of working hours. It is just that an employee has a right to ignore this in certain circumstances.

There is nothing wrong with an employer sending a message or trying to call an employee at any time, so long as the employee has a choice whether or not to respond.

It is only when an employee is required to respond to that contact, or subject to adverse consequences for failing to do so, and the requirement to respond was unreasonable, that an employer will have committed an offence.

The reason that people may be confused about the legalities may be due to the nature of how the Bill was introduced into Parliament, which saw it passed as the result of an opposition amendment. This means it was not subject to the degree of Parliamentary scrutiny and debate that we would have seen if they had been put forward by the Government.

Having struck a deal with the Greens about including the provisions in the Bill at the last minute, the provisions were approved at breakneck speed and caught many people by surprise.

How can I set expectations with my team and reduce my risk of non-compliance?

Like with any new legislation, knowing how to navigate it in real time is the hardest part. For businesses, here’s some practical tips you can put into action right now.

1. Make sure your employees understand the expectation of them about what out of hours contact is expected.

2. You can issue a Right to Disconnect Policy to your team to ensure that expectations are clear. You should be as specific as possible about what situations an employee is required to monitor for contact and to respond to it. For example, you might say that all employees will be required to respond to out of hours contact in an emergency, but if such an emergency arises, your policy will be that you send an SMS or call the employee on their personal mobile phone. However, you might say that employees are not required to generally monitor their emails outside of work hours unless they are directed to by SMS or phone call.

3. We recommend that employees’ employment contracts also refer to the fact that some out of hours contact will be required (ideally with specific examples). If an employee has been told in advance of starting employment what out of hours contact is required, and they have accepted the employment on that basis by signing the contract, it is going to be difficult for them to argue that the contact is unreasonable.

4. Another thing which the legislation really emphasises, is that a requirement to respond to out of hours contact is more likely to be reasonable when the employee is compensated for this. Think about whether you can implement any sort of extra payment (e.g. an on-call allowance) or provide time off in lieu when an employee has to respond to contact out of hours, or is required to monitor for communication.

5. Make sure you understand your rights and obligations under any modern award that applies to the business re: payment for out of hours contact, on-call allowances, emergency roster changes and recall to duty provisions. These may give you an ability to require an employee to be contactable, so long as you follow the award provisions.

6. If you have senior employees who are paid a high salary, it would be advisable that their employment contract specifically refers to the fact that the salary has been set at that level in consideration of a reasonable amount of out of hours contact being required.

7. In your day-to-day communications with employees, it will be important to be clear about what sort of out of hours communications you require responses to. Business owners may be used to working all the hours under the sun and sending emails in the middle of the night – but are you expecting a response at that time?

8. Many email and messaging systems such as Slack allow you to draft messages and then schedule for them to be sent out at a later time. You could consider doing this if you are not in a global business and all your employees are working the same set pattern of hours.

9. Some people opt for email signatures which say something along the lines of “I tend to work flexible hours and send messages at all times of the day and night. I do not expect you to respond to my messages outside of your normal working hours.”

Employment Hero can help you navigate employment law updates with ease

This is just one of the many changes that came into effect on 26 August 2024. Luckily, Employment Hero is purpose-built for employment law updates like these, so you can boost your compliance confidence across your entire business.

If you’d like to see all the ways our powerful software can help Aussie businesses tackle changes to legislation under the Closing Loopholes Bill, we’ve put together a handy blog here. 

If you’d like more assistance with managing your employer obligations around the recently introduced right to disconnect, our HR advisory service can give you the support you need. Alternatively, you can chat to one of our business specialists to learn more about Employment Hero.