Time flies when you’re having fun: the statutory ‘right to disconnect’ is now just around the corner. This surprise insertion into the recent Closing Loopholes legislative reforms (Closing Loopholes No. 2) will commence on 26 August 2024 for large businesses. A model term on the right to disconnect will also be introduced to modern awards on the same day.
The right to disconnect has the potential to impact current working arrangements, approaches to flexibility, communications with employees, and the formulation and handling of general protections claims.
To help you get ready for its introduction, here is a recap of the framework for the new right and our practical preparation tips that your business can start implementing now.
Employee right to disconnect
The right to disconnect under the Act
From 26 August 2024, an employee will have the right under the Fair Work Act 2009 (Cth) (Fair Work Act) to refuse to monitor, read or respond to contact, or attempted contact, outside of the employee’s working hours, both from employers and third parties (client, customer, supplier and the like), unless that refusal is unreasonable.
In determining whether a refusal is unreasonable, a range of factors relevant to the working relationship must be considered. For example, the reason for the contact or attempted contact, the level of disruption the contact or attempted contact causes the employee, the nature of the employee’s role and level of responsibility and so on.
Significantly, the right to disconnect will also be a workplace right under the Fair Work Act. This means employees will be able to make general protections claims if they believe adverse action was taken against them because they exercised or could in the future exercise the right to disconnect.
The right to disconnect under modern awards
As part of the Closing Loopholes No. 2 amendments, each modern award will also be varied to include the right from 26 August 2024.
The Fair Work Commission has last week published a draft award term (available here). Comments are due on the draft award term by 1 August 2024 with determinations to be published by 23 August 2024.
In its current form, the draft award term refers to the legislative right to disconnect and provides that an employer “must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act”. The draft term also seeks to clarify the interaction of the right with standby, emergency roster changes and call back clauses in the relevant modern award.
Importantly, the Commission has flagged that it does not currently intend to make guidelines concerning the right to disconnect before the award terms come into effect, expressing its view that guidance should instead follow once the Commission has dealt with “at least some disputes” involving the operation of the right.
Top tips on preparing for the right to disconnect
Adapting to the right to disconnect will look different for every employer. Below are some practical steps we think can assist your organisation to get prepared for this new workplace entitlement.
- Take time to understand what your organisation’s current culture around out-of-hours employee contact looks like. In particular, focus on individual team habits, including whether they operate across different time zones and rosters, and how this might impact expectations for contact outside employees’ working hours.
- For teams with standby (on call), call back (recall) or any emergency roster change arrangements, identify usual arrangements for notifying relevant staff where those circumstances arise. This is particularly important where a modern award applies.
- Review or develop your organisation’s policy on out-of-hours contact and work expectations. Consider expressly setting out reasonable practices and expectations, such as:
- standard requirements or principles for how leaders should communicate expectations around out-of-hours work, and
- standard arrangements for notifying relevant employees of recalls to work or emergency roster changes, and expectations for contact arrangements for standby duties.
- Communicate the policy within your organisation through appropriate modes and channels, e.g. a town hall, email bulletin or executive update.
- Consider how you may need to manage client, contractor and other third party expectations in relation to out-of-hours contact of employees.
- Provide training for HR and legal teams, managers and project leads on the new workplace right and how it may impact their decisions. Relevantly, consider the risks associated with unlawful adverse action and disputes in connection with the right, including the potential availability of “Stop Orders” from the Fair Work Commission. Ensure the training covers practical steps leaders can take to help align their everyday work practices with the right to disconnect.
Consider setting or resetting expectations around monitoring, reading and responding to out-of-hours contact, and ensuring urgent and non-urgent contact attempts are appropriately identified. Mechanisms might include:
- Email banners: add a standard banner to email signatures to reflect your organisation’s position on flexibility and out-of-hours contact.
- Flagging urgent emails: determine a consistent and clear process for flagging or identifying urgent emails which reasonably require a response or action before the recipient’s regular working hours next commence.
- Systematise better habits: encourage application of similar flags to non-urgent emails, so teams understand when an email is “Not time sensitive: For action tomorrow” (for example).
- Client/customer management: consider the impact of particular client relationships on team members, and ensure your team members understand your expectations of them when a client contacts or attempts to contact them out of hours.
- For lower-paid employees who are routinely required to be contactable after-hours, consider whether it might be appropriate to introduce a paid allowance or other compensation (particularly where not already dealt with through a standby/call back allowance structure in a modern award).
- Consider the implications of the right to disconnect on performance and remuneration processes that may be based on employee contribution and effort, including outside normal working hours.
- Where employees are paid an all-inclusive salary, ensure your template employment contracts clearly link employees’ remuneration to the requirement to attend to work-related contact outside usual hours from time to time.
Please contact us to discuss your organisation’s specific circumstances and sustainable changes your organisation can make to help align your ways of working with this new workplace right.
