Do you contact your employees outside of usual working hours? What is the ‘Right to Disconnect’?

The new Right to Disconnect legislation has now come into effect, so what does that mean for your business?

Under this legislation, employees now have a right to disconnect which is designed to safeguard employees from facing repercussions for declining work-related calls or emails beyond their regular work hours, unless their refusal is deemed unreasonable.

What constitutes an unreasonable refusal?

Several factors will be taken into account to assess whether a refusal to respond is unreasonable, such as:

• The purpose behind the communication
• The method of communication and the extent of disturbance it causes the employee
• The degree to which the employee is remunerated
  • Is the employee on-call when they receive the communication?
  • Is the employee paid overtime for the communication?
• The nature of the employee’s tasks and the degree of responsibility involved
• The employee’s personal situation, including family or caregiving duties

It is likely that communication during emergencies or for altering work conditions (like location or hours) will be deemed reasonable.

Disagreements concerning the right to disconnect

In the event of a dispute, you and your employee are required to seek resolution at the workplace level initially.

If you are unable to resolve the disagreement, you or your employee may apply to the Fair Work Commission (FWC) for:

• An order requiring you to stop unreasonable contact outside of working hours; or
• The FWC to intervene and address the dispute in another manner.

If it is found that your employee has unreasonably declined to engage in contact outside of regular working hours, the FWC retains the authority to issue any necessary orders to deter the employee from persisting in such behaviour.

If the FWC determines that the employee’s refusal is justified, it can issue orders to:

• Prohibit you from initiating disciplinary measures or any other form of action against the employee; and/or
• Prohibit you from persisting in requiring the employee to engage in monitoring, reading, or responding to after-hours contact.

Employers or employees who violate an FWC order may be subject to monetary penalties.

What should you do next?

With these new laws now in effect we recommend that you examine your employment contracts and workplace policies and procedures to ensure alignment with the updated legislation. Ensure you make any necessary updates to these documents to strengthen their ability to demonstrate that out-of-hours contact is not deemed “unreasonable.”

If you have any questions on how this may impact your business, please contact us today.