This is the second article in our Closing the Loopholes No 2 series. In this article we will discuss one of the major changes to workplace legislation being the Right to Disconnect. The Right to Disconnect comes into effect on 26 August 2024 for medium/large businesses and 26 August 2025 for small businesses (less than 15 employees).

The right to disconnect will regulate how employees and employers interact outside of working hours. This right will not prevent employees from being contacted by their employers outside of working hours, however it will allow employees:

• to refuse attempted contact outside of working hours;
• to refuse to monitor communications from their employer; and
• to refuse to read or respond to communications from their employer.

They will be able to do this when they are not expected to be working or they are not being paid to be working, as long as refusing the interaction is not unreasonable.

There are a number of factors that will be considered when determining whether a refusal to interact with the employer is reasonable. The Closing the Loopholes legislation lists the following factors that are required to be considered:

1. The reason for the attempted contact;
2. The method of contacting the employee and the degree of disruption that it causes the employee;
3. If the employee is being compensated to be available or to perform extra work outside of the ordinary hours of work;
4. The nature of the employee’s role and their level of responsibility;
5. Personal factors, which may include family responsibilities.

This list is non-exhaustive and other factors may be considered. An example of another factor that may be taken into consideration is patterns of behaviour.

The right to disconnect will be a workplace right and therefore the general protections provisions of the Act will apply. This means that employees will be able to make a claim in the Fair Work Commission if an employer takes adverse action against the employee for exercising this right.

The legislation provides a modified path for an employee to make a claim of this nature. The employee will first have to engage in dispute resolution in the workplace. This might include discussions with managers or filing a grievance pursuant to company policies.

Should this process not resolve the dispute, the employee can then make a request to the Commission for a Stop Order. If successful, this will involve the Commission making an order that the employer be prevented from taking performance management and/or disciplinary action against the employee for reasonably refusing contact outside of business hours or that the employer be prevented from making any unreasonable contact with the employee.

Finally, if orders of this nature are not complied with, the Commission will have the ability to order mediation or conciliation between the parties.

Penalties imposed by the Commission on companies for breaching this right will be dealt with by the Civil Remedy Provisions of the Fair Work Act and therefore there will not be a limit on the amount the Commission can award to the employee.

Lessons for Employers

• Employers should prepare for when these provisions come into place by understanding the rights of their employees and the obligations they have as an employer.
  • A company may for example put in place training and education tools to assist management in understanding the new workplace right.
• Modifying and/or drafting policies to include the right to disconnect and how to deal with internal disputes will be a helpful tool in avoiding claims in the Fair Work Commission.
• Employers should be upfront with their employees in relation to out of hours contact.

If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.