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With the Right to Disconnect soon to launch, employment law expert Guy Biddle looks at its implications for employers and clients.
In August, new laws will come into place nationally regarding employees’ rights to disconnect from work, whether they are employed casually, part-time or full-time or a ‘gig worker’.
An amendment to the Fair Work Legislation, the Right to Disconnect is designed to allow employees to set boundaries between their work and personal life.
This has been necessitated by the digital transformation of the workplace, the ubiquity of smartphones and, more recently, the move to flexible working. All of which have made it harder for employees to disconnect from work.
Finlaysons partner Guy Biddle heads up the firm’s Employment & Workplace Safety team and said the Right to Disconnect does not ban employers or their clients from contacting employees outside of their working hours.
Rather, if employees are unreasonably contacted outside their working hours, employees have the right to not to respond to such correspondence; in other words, ‘disconnect’.
This has led to a lot of questions about what is considered ‘reasonable’ contact – which is the exemption to the Right to Disconnect.
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Biddle said there are too many permutations to give a blanket definition for what is ‘reasonable’, but if a dispute were to go before the Fair Work Commission, multiple factors would be considered.
These include the reason for the contact or attempted contact; how contact is made or attempted; the level of disruption caused to the employee; the extent to which an employee is compensated to be available for work outside their ordinary hours; the employee’s personal circumstances such as family responsibilities; and the nature of an employee’s role and level of responsibility.
This last factor, he said, could see many industries needing to update their employment contracts.
For example, while wedding planners tend to work normal office hours, their clients are likely to contact them after hours when the couple is free.
This availability will need to be clearly specified in contracts. Having wording like ‘being available from time to time after hours’ will not be enough.
On the other hand, being phoned by a client on a weekend or after hours “because the client just happens to be working then”, Biddle said, would be considered unreasonable and it would be within an employee’s rights to ignore the contact.
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From August, employees will be able to apply to the Fair Work Commission for an order on the employer to stop unreasonable after hours contact. If an order is breached, civil penalties may apply such as fines. Likewise, an employer can apply to the Fair Work Commission for an order that contacting the relevant employee out of hours is reasonable.
For employees who want the flexibility to work after hours, which is agreed by their employers, the changes will not impact communications during these hours.
However, Biddle advised employers and employees to have a written agreement on communications during these hours. This is why it is important to make sure your contracts and policies and procedures are up to date now, before these changes come in.
The Right to Disconnect is consistent with wider trends in workplace safety over the last year. This includes a focus on wellbeing, including the duty to prevent sexual harassment at work, and amendments to work health and safety regulations to specifically address psychosocial risk.
It also is part of a global movement, with France enacting laws in 2017, followed by Italy, Slovakia, Luxembourg, Philippines, Canada and Spain. Germany, while not having formalised the right, is seeing a similar effect with large companies introducing their own rules.
The law will come into effect on 26 August 2024 for companies with 15 or more employees, and one year later for employers with fewer employees.
It will also change in all modern awards. However, for workers who have a stronger right to disconnect clause in their employment contract, that right will remain.
It is recommended employers take the Right to Disconnect seriously or otherwise there could be repercussions. Biddle advised employers to provide training for managers and those in senior positions on the Right to Disconnect.
Employees or employers can raise a concern with the Fair Work Commission which may issue a ‘stop order’, whether that is to stop refusing communications or to stop making unreasonable contact after hours.
Biddle said the Right to Disconnect should not be seen as combative and it could ultimately improve the culture within a company, and that is how it should be introduced – to change workplace culture for the better.
Finlaysons is a leading independent corporate and commercial law firm in Australia, with offices in Adelaide and Darwin, working with clients across Australia and internationally.
Guy Biddle, Jessie Murphy Allen and Daniella Carling are experienced lawyers in the Finlaysons Workplace team. They advise clients on industrial matters including equal opportunity and discrimination claims, underpayment of wages claims, managing workplace behaviour including bullying and harassment, advice on employee entitlements, employee contracts, workplace injury and the rights and obligations of employers and workers in relation to workplace health and safety.
