Legislation was recently passed by the federal parliament officially giving employees a “right to disconnect” outside their working hours. Subject to certain narrow exceptions (eg defence and national security), the new right applies to all private sector and federal employees. The government’s intention is to stop unpaid overtime for workers through a right to disconnect from unreasonable contact out of hours. The changes will not take force for 6 months (12 months for small business, ie less than 15 employees) so there is some time to consider the practical consequences.
The central amendment to the Fair Work Act gives all employees the right to refuse to monitor, read or respond to contact or attempted contact from an employer outside the employee’s working hours unless the refusal is unreasonable. So, the right to disconnect is properly a right to refuse to connect. This right also extends to contact from a third party, such as a client or customer. Statutory factors to consider in deciding whether a refusal is unreasonable include:
a. the reason for the contact;
b. how the contact is made and the level of disruption the contact causes the employee;
c. the extent to which the employee is compensated to either remain available during the period of the contact or for working additional hours (compensation may or may not be financial);
d. the nature of the employee’s role and responsibility level; and
e. the employee’s personal circumstances (including family or caring responsibilities).
The right to disconnect is a workplace right and the Act prohibits an employer from taking adverse action against the employee because of the right. A breach may be subject to civil penalties but will not be a criminal offence. Employers need to be very careful about moving straight to disciplinary action.
Disputes can be raised in the Fair Work Commission (FWC) by either an employer or employee. The employer and employee must first attempt to discuss the issue to see if agreement can be reached before taking the matter to the FWC. The FWC can make orders if the FWC is satisfied that:
a. there has been an unreasonable refusal to connect by an employee AND there is a risk the employee will continue to do so; OR
b. there has been a reasonable refusal by an employee AND there is a risk the employer will either take disciplinary action or continue to require the employee to connect outside their working hours.
The FWC will likely first hold a conciliation conference and is required to deal with an application as soon as reasonably practicable. The right to disconnect will also be included in industrial awards and are likely to become a feature of enterprise agreements.
So, according to the government, the amendments are all about unpaid overtime. Doesn’t sound so unreasonable does it? There are a couple of points for employers to note:
1. the right to disconnect only relates to employees and not contractors (or employers themselves);
2. employers should consider job and working hours requirements before deciding to employ someone and whether there are alternatives to employment;
3. if not, then employers should properly document those requirements and articulate them to job candidates in interviews and in offers of employment;
4. prevention is better than cure so the key is to consider what out of hours work may be needed, how often and engage with employees up front about these needs;
5. closer consideration needs to be given to what hours of work are being remunerated and specific contractual provision may need to be made rather than a general statement that remuneration is intended to cover all hours of work;
6. also consider what alternatives may exist in the case of a refusal.
For employees, it is also advisable to ask questions before accepting a job offer and if an unreasonable request arises, try and start a conversation with an employer about their expectations before an outright refusal occurs which may not be positive for an ongoing working relationship (notwithstanding the possibility of legal action).
Like a lot of legislation, it could be said that the principles are common sense and these rights already exist and just the latest example of legislative duplication resulting in ever longer statutes. On the other hand, it is arguably an important expression of principle, particularly in an increasingly 24/7 world where the boundaries between work and personal life are blurred in an increasing number of occupations. Of course, the laws are a “one size fits all” model which will have different application in different industries and jobs. What is reasonable in one case may not be reasonable in another case.
It is likely that the right will have most application in white collar positions which are not already subject to award or enterprise agreement regulation of hours of work. Professionals of all types are an obvious sector where traditional expectations of work are being challenged by a variety of legal and cultural changes. Expectations of availability that were unexceptional only a few years ago need to be reconsidered in the modern workplace where there is greater emphasis on the psychosocial safety of employees, awareness of burnout and perhaps greater appreciation that work is only one part of life. Employers need to be increasingly sensitive in their treatment of employees and communicate appropriately.
Please contact us if you would like any further information or help.