By Charlotte Black
What is it and does it impact my business?
There has been considerable media attention recently about the new ‘right to disconnect laws’.
The new laws which came into force following the enactment of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (No. 2 2024) have been sensationalised in the media as giving employees a right to ignore all communications from their employers outside of their ordinary hours and as a ban on employers communicating with their employees outside of their ordinary hours. However, this is not always the case.
With the new laws now applying to some employers, it is important that employers understand the new laws so they can implement appropriate policies and internal procedures so they can navigate the new laws.
What is the ‘right to disconnect’
The right to disconnect now gives employees the right to refuse to monitor, read or respond to contact or any attempts to contact them outside of their working hours unless refusing to respond would be considerable unreasonable.
What type of contact can an employee refuse
An employee, in certain circumstances is now permitted to ignore all forms of contact from their employer or a third party, such as a client, without any consequences.
Types of communication could include:
- Refusal to monitor and/or respond to emails;
- Refusal to take telephone calls;
- Refusal to answer voicemails;
- Refusal to answer text messages.
What is unreasonable
A key element of the new ‘right to disconnect laws’ is that it does not give every employee the right to refuse any and all contact in all circumstances.
The test in considering whether an employee is reasonably entitled to refuse to respond requires consideration of a number of factors.
The test requires an assessment of whether the contact outside of ordinary hours is reasonable in the circumstances (or whether their refusal to answer communication outside their ordinary hours is unreasonable).
To assist with this assessment, Fair Work has provided a list of guiding factors to be considered in assessing the reasonableness. These include:
- Why was the employee contacted outside of their ordinary working hours;
- How was the contact made and how disruptive was it – for example, an email is far less disruptive then repeated telephone calls;
- How much is the employee compensated or paid extra for:
(a) Being available to perform work during the period they are contracted; or
(b) Working additional hours outside of their ordinary working hours.
- What is the employee’s role within the business and their level of responsibility;
- What is the employee’s personal circumstances including family or caring responsibilities.
What is important to note is that this list is not exhaustive, and it is more than likely that as ‘right to disconnect’ develops within the ambit of employee’s rights, so will the list of factors that ought be considered in assessing whether a employee should answer communication outside of their ordinary hours.
Who does the ‘right to disconnect’ apply to
Despite recent media attention, it is important for employers to note that the ‘right to disconnect’ laws do not yet apply to all employees.
As of 26 August 2024, employers of non-small business employee’s will be impacted by the new right to disconnect laws.
However, the laws will not apply to business which were a small business employer on 26 August 2024 until 26 August 2025.
What is a small business
It is important to note that there is a specific definition of what constitutes a small business.
Fair Work defines a small business to be a business that employs fewer than 15 people. That number is regardless of whether those employees are full time, part-time or casual.
What steps should businesses be implementing in response to the ‘right to disconnect laws’
Whether or not the new ‘right to disconnect’ laws apply to your business now or in just under one years’ time, it is imperative that businesses begin taking steps to ensure they are compliant with these laws.
Steps businesses should take include:
- Reviewing employment agreements including employee’s position description. Consideration should be given to the language which describes an employee’s salary, remuneration and duties so as to ensure they are being appropriately remunerated for contact outside of ordinary working hours;
- Training staff members to ensure that everyone is aware of the new ‘right to disconnect’ law and what it means for the ongoing running of the business;
- Reviewing current procedures and policies which your business has regarding employees obligation to be contactable outside of business hours.
Conclusion
The introduction of the ‘right to disconnect laws’ has created much uncertainty amongst business owners.
If you have any questions or concerns about how the new ‘right to disconnect laws’ may impact your employment or your business, please contact Mr Dean Jones or Ms Charlotte Black on (03) 8621 1000 at our Melbourne office or (03) 9331 1144 at our Essendon office or via email at advisors@emlawyers.com.au.
