Right to Disconnect enshrined in legislation

Right to Disconnect enshrined in legislation

Right to Disconnect enshrined in legislation

One of the more publicised components of the Federal government’s Fair Work Legislation Amendment (Closing Loopholes) Bill No.2 (the Bill) is the requirement that employees can be ‘disconnected’ from their work outside of an employee’s working hours.

The Bill introduces a new section of the Fair Work Act 2009, ‘333M Employee Right to Disconnect’ which includes the following provisions:

  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.

The section provides the following guidelines as to what matters will be considered to determine whether contact outside working hours is considered unreasonable:

3. (a) the reason for the contact or attempted contact;

   (b) How the contact or attempted contact is mandated the level of disruption the contact or attempted contact causes the employee;

            (c) 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;

            (d) The nature of the employee’s role and the employee’s level of responsibility;

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

Under the legislation, if there is a dispute between either the employer or employee, they are required to attempt, in the first instance, to resolve the matter themselves through discussions at the workplace level. Any unresolved dispute may progress to the Fair Work Commission to seek a resolution.

The disconnection provisions are in response to a small number of employers who expect workers to respond to emails and phone calls promptly, irrespective of the time the contact is made.

Employers are strongly encouraged to review their current practices regarding contacting employees outside of their ordinary hours. It is recommended that employers:

  • Send emails with time delays;
  • Discuss with employees your expectations as to when responses are expected;
  • Limit phone calls to ‘critical/emergency’ contact situations only.

Whilst an employee’s ‘right to disconnect’ is a common concept in France,  Employers are entitled to reasonable work-related communication with employees after hours, within the context of their occupation, industry, and operational needs.

For example, this may include changes in work times, work travel arrangements, weather forecasts, urgent information impacting the productivity of others, e.g. an access code, and information reasonably required by the employee in the preparation of work, including changes in who, what, where, why or when. We anticipate some water cooler talk about what’s in and what’s out, but reasonable required is not that difficult to navigate but may be complicated by those with occupational, professional responsibilities to legal clients or medical patients.

Employers will need to take particular care in regard to employees exercising their right to disconnect in support of or at the direction of a medical practitioner. This may include reasonable adjustments to or delays in email server communication to the employee outside ordinary time.

Workforce Advisory can assist you and your HR team with a supporting policy or adjustments, which may include an email footer confirming that if this email is sent outside of your normal business hours, you are not obligated to action or respond unless marked urgent in the subject.

Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 – Parliament of Australia

For queries about employee contact, right to disconnect, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 411.0224

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