What is the “right to disconnect” and what does it mean for you as an employer?

There has been a lot of hype and conjecture surrounding the commencement of the “right to disconnect”. With the implementation date of 26 August 2024 (26 August 2025 for small businesses) fast approaching, it is important to understand the new workplace right and what employers could be doing now in preparation.

What is the “right to disconnect”?

The right to disconnect is a new workplace right for all employees.  In summary, the workplace right provides that unless it is unreasonable to do so, an employee may refuse to monitor, read or respond to contact or attempted contact from:

• Their employer outside of the employee’s working hours.
• A third party if the contact or attempted contact relates to their work and is outside the employee’s working hours.

Importantly, the workplace right belongs to an employee and therefore it is up to the employee to decide if they engage with out of hours contact.  However, if an employee exercises their workplace right not to engage in out of hours contact, and it is reasonable for them to do so, an employer must not take any adverse action because of the exercise of the workplace right.

When is it unreasonable for an employee to exercise their workplace right to disconnect?

There is currently limited information available on this issue.  We would expect greater clarity will emerge over time as disputes about exercising the workplace right are decided by the Fair Work Commission (FWC). What we know now are the matters that must be considered by the FWC in determining if a refusal is unreasonable include:

• The reason for the contact
• Whether the employee is compensated or paid extra for:
  • Being available to be contacted to perform work within a specified period; or
  • Working additional hours outside of ordinary hours of work
• The nature of the employee’s role and level of responsibility
• The employee’s personal circumstances, including family or caring responsibilities.

The FWC has released a draft of the clause on the right to disconnect to be inserted into all Modern Awards. This draft clause is not programmed to be released until 23 August 2024, which is the Friday before the workplace right commences on Monday 26 August 2024. The current draft Modern Award clause does not appear to provide any additional clarity or obligation than that set out above and what is included in the Fair Work Act. Importantly, the workplace right applies to all employees, not only employees who are covered by a Modern Award.  The FWC will release guidelines on the workplace right in the future once it has had an opportunity to see how it operates in practice after 26 August 2024.

Disputes about the exercise of the workplace right to disconnect will be able to be referred to the FWC for resolution.  A breach of the workplace right to disconnect, resulting in adverse action in relation to an employee will also be able to be used in a General Protections application as applies to all breaches of workplace rights.

What should employers be doing before 26 August 2024 (or 26 August 2025 for small employers)?

We recommend that before 26 August 2024, employers take the time to:

• Understand if and if so why, employees may be contacted out of working hours
• Understand if out of hours contact that is occurring is operationally required, or merely convenient to the person making the contact
• If out of hours work is not genuinely operationally required, consult with effected employees about options and alternatives
• Understand if employees who are expected to engage in out of hours contact are compensated; for example, are they paid a salary which includes sufficient compensation for out of hours work, if not are they paid an on call or standby allowance for times when they are expected to be available outside of working hours
• Consult with employees about what the expectations for out of hours work may be and agree on strategies or processes to be followed
• Ensure that any genuine out of hours requirements are clearly stated in position descriptions and recruitment processes
• Ensure that employment agreements address this issue where relevant
• The workplace right belongs to the employee who can exercise it or not at their discretion, and therefore, consultation with employees to understand their preference should the need, or perceived need, arise to make out of hours contact
• Understand what constitutes “working hours” for an employee, as this may vary between employees.

In conclusion, it is our view that the introduction of the workplace right to disconnect will not prove to be a significant detriment to the vast majority of employers. It is an opportunity to engage in open and transparent consultation with employees and to reach a mutual understanding about what is reasonable or unreasonable for an employee, given their own personal circumstances. It is not, however, a one-off discussion as business needs and personal circumstances may well change over time, therefore an ongoing consultation process should commence now.

We will update clients as more information becomes available closer to, or following, the implementation date for this workplace right.

If you have any questions about the right to disconnect, contact one of our HR consultants.