Introduction
The Federal Government has moved to further regulate the relationship between work and home with new Right to Disconnect laws. The laws mean that employees have more control over when and how they choose to respond to communication from their employer outside business hours.
What’s changing?
The new Right to Disconnect is part of the Closing the Loophole changes, and will apply to all employers, except small employers, from 26 August 2024. Small employers get an extra year, to 26 August 2025, before the changes impact them.
The Right to Disconnect is a designated
workplace right under the Fair Work Act. This means that an employer is prevented from taking adverse action (for example, performance management, discipline process, or termination) against an employee because they exercised or proposed to exercise their right to disconnect.
What does this mean for Australian businesses?
Employees will now have the right to
not respond to contact from their employer outside of their working hours, unless doing so is
unreasonable. This means that managers will need to reconsider their expectations regarding contact with workers outside of their usual hours of business.
To be clear, the changes don’t necessarily stop employers from contacting staff after hours. Instead, the focus of the changes is to provide a pathway for employees to choose not to respond to, or even check, communications. For some employees, this may mean (for example) not checking emails, while for others it could mean that they turn off a work phone altogether outside of their usual working day.
Does this mean no employee will ever check their work messages out of hours again?
In short – no.
Firstly, the changes allow individual employees to make the decisions about how contactable they will or won’t be, but it is not a blanket right for employees to
ignore out-of-hours contact in all circumstances. There is also a test of reasonableness which applies to the changes.
The following are some of the factors managers should consider when thinking about contacting employees outside their paid hours:
- the reason for the contact or attempted contact (can it wait until tomorrow/usual working hours?)
- the method of contact and level of disruption it causes the employee
- whether the employee is being compensated to remain available or perform additional work outside ordinary hours
- the nature of the employee’s role and the employee’s level of responsibility
- the employee’s personal circumstances (including family or caring responsibilities)
What this tells us is that the workplace context and arrangements are critical to determining what is reasonable. What may be unreasonable to expect of an employee in a junior role, may be commonplace for a high level manager who is adequately compensated for the expectation of being available out of hours.
What do businesses need to do about these new laws?
Depending on the nature of the business, and factors such as workplace culture, for some employers the new right to disconnect will have little to no impact, while for others, it may fundamentally shift how employers interact with their employees outside of working hours.
Conclusion
Businesses should be considering their current work practices and business requirements, and the policies which guide them, and making updates accordingly.
Line managers also need to be clear with workers about business and role expectations by communicating upfront with employees about working hours and organisational culture. For example, if it is considered necessary for an employee to be available for out of hours contact, you might consider negotiating a modest pay increase or allowance to compensate for this.
How can Hicksons help?
The Hicksons Workplace Relations team has experience in reviewing, drafting, and implementing practical and sensible policies in response to these changes in the law, and are ready to answer any questions you may have.
Should you have any questions or require assistance, please contact Partner,
Warwick Ryan, or Senior Associate,
Helen Sexton.
Article written by Partner, Warwick Ryan and Senior Associate, Helen Sexton.