Ready to reclaim your evenings and weekends? Where work emails and calls can’t intrude on your time? Where evenings are spent with family and friends or enjoying your interests, rather than constantly checking your work phone?
From 26 August 2024, employees of medium and large businesses in Australia will have a legal ‘right to disconnect’ under the Fair Work Act 2009 (Cth) (FWA). This means they can refuse to monitor, read or respond to contact (or attempted contact) from their employer or third-party contact (e.g. customers, clients or suppliers) outside of their working hours unless the refusal is unreasonable. This applies to any contact including calls, emails, texts and instant messages.
But the right to disconnect might not be as straightforward as it seems. So, what is considered an “unreasonable refusal”? And what can employers do to ensure the right to disconnect is communicated clearly? We’ll look at a scenario to help clarify this.
Meet Jack and Kate
Jack and Kate work together. One night after work hours, Jack contacts Kate, asking her to complete a crucial piece of work for a client. Kate, who was sound asleep, missed the contact and didn’t see it until the next morning. She decides not to respond until she commences work.
Was Kate’s refusal to respond unreasonable? You can ask yourself some questions to determine this:
- What was the reason for the contact? Was it urgent and needed immediate action, or could it wait until Kate’s ordinary working hours the next day? What would happen if Kate didn’t respond?
- What method of contact did Jack use to get in touch with Kate?
- Is Kate a highly paid senior manager or a junior employee who is paid a relatively low salary?
- To what extent would Kate be disrupted by Jack contacting her?
- Does Kate’s role require her to be available outside her ordinary work hours?
- Is Kate compensated to be available outside her regular working hours?
- What time zones are Jack and Kate in? Does Kate’s role require her to work across different time zones?
- Does Kate have circumstances outside of work, such as family or caring responsibilities, that might prevent her from being available to respond?
Asking and answering these questions can lead to different outcomes. For example, if Kate is a junior employee with caring responsibilities and Jack repeatedly phoned Kate about a non-urgent task, it might be reasonable for her to refuse to respond until she was at work. However, if Kate is a highly paid executive working across multiple time zones, where the task was genuinely urgent in Jack’s time zone, it could be unreasonable for her to refuse to respond.
As you can see, the balance between the right to disconnect and when a refusal is reasonable will depend on the circumstances.
So, what can employers do to help make it clearer?
Here are some things employers can do to ensure they accommodate their employees’ right to disconnect.
- Provide clarity and feedback mechanisms between managers and workers about the level of communication that is expected out of regular working hours. Clear communication within the workforce will be essential to managing expectations and reducing risks.
- Prepare policies about working outside of agreed working hours, including when it might be expected that an employee will respond outside of hours, and when it might be reasonable to refuse to connect.
- Train all employees about the “right to disconnect” legislation and policies.
- Provide training for managers to ensure they don’t act against employees exercising their new rights.
- When working with third parties, such as clients or suppliers, ensure expectations are set with regard to response times.
- Consider introducing email signatures to reflect flexible work arrangements or that there is no expectation to respond out of hours.
- Review contracts and position descriptions to identify whether they adequately reflect, and compensate, for work that is expected to be done out of hours.
The right to disconnect will be a protected workplace right under the FWA but it does not come with a one-size-fits-all approach. It will take some time for employers and employees to determine what is reasonable for each employee’s circumstances. It will also depend on each organisation’s policies and procedures, any applicable industrial instrument (such as a modern award or enterprise agreement) and an employee’s employment contract, as well as cases decided by the Fair Work Commission and courts as this new law is tested.
Want to know more about Australia’s “Right to Disconnect” law?
Litmos has released Right to Disconnect for Employees and Right to Disconnect for Managers courses in our ANZ Compliance library. They are available for customers to roll out now to their employees and managers. And don’t forget those overseas managers who manage Australian staff – they’ll also need to know how this impacts them.
Happy disconnecting… within reason, of course.
