The right to disconnect - practical tips and key learnings for employers

Whilst it was a ‘last minute’ addition, it appears that the most discussed aspect of the Federal Government’s recent Closing Loopholes workplace reform package has been the right to disconnect.

This legislation marks the first time this right has been legislated in the context of Australian workplaces and represents a significant challenge for employers who may be grappling with this concept for the first time.

To get up to speed on the details of the new right, you can read a more detailed note from HSF here, but at a high level, the right to disconnect:

• introduces a positive right for employees to refuse to monitor, read or respond to contact, or attempted contact, from their employer, or third parties related to their work like clients or suppliers, if that contact is outside of the employee’s working hours, unless this refusal is unreasonable.
• introduces new ‘Stop Orders’ that involve employees applying to the Fair Work Commission for an order that unreasonable contact stop, or that disciplinary action resulting from their reasonable refusal, stop. Conversely, employers can also apply for an order that employees stop unreasonably refusing to respond to out of hours contact. The FWC must begin dealing with matters within 14 days and breaching an order can result in a significant civil penalty.
• empowers the FWC to deal with disputes about the right to disconnect, including by making binding arbitrated decisions, but only after the employee and employer have first tried to resolve the dispute at the workplace level. 
• adds a new protected attribute under the Fair Work Act, meaning that it will be unlawful for an employer to take adverse action, such as dismissal or demotion, against an employee for exercising their right to disconnect.

We will focus on some of the practical steps that employers might take and other important considerations to prepare for the introduction of this new right.

When can employers be sure after hours contact is unreasonable?

Incoming section 333(1)(M) of the Fair Work Act prescribes factors that the FWC is required to take into account when considering whether out of hours contact is unreasonable. This includes considering the reason for the contact, the disruption caused to the employee by the contact, any compensation paid to the employee to remain available out of hours or any money paid to work additional hours, the nature of the employee’s role and their seniority in the organisation and the employee’s personal circumstances, including any family and caring responsibilities. 

The Government has publicly indicated that it was not the intention of these reforms to prevent employers from contacting employees if the contact related to emergency or critical work or was made for the purpose of checking an employee’s shift availability. However, this intention did not find its way into the legislation, with the only carveouts in the Bill relating to defence and national security operations, contact required by law and small business employers who are exempt from the right to disconnect provisions for the first 12 months after the new right commences to operate.

The Bill empowers the FWC to make non-legislative guidelines that we anticipate will provide additional clarification on how the Commission will approach the question of when communications will be considered unreasonable. We also expect the first cases brought under these new sections will shed light on how the FWC will approach accusations of unreasonable out of hours contact. 

Employers should give careful consideration to the nature of their industry, the work performed by their employees and the levels of remuneration payable to staff. The question of whether out of hours contact is unreasonable will necessarily be different for individual employees and for those at differing seniority levels within a business. Employers might need to be prepared to shift expectations in terms of contacting employee’s out of hours, particularly for more junior employees.

Identifying and addressing areas of concern before the right commences

Identifying and addressing why, how and where out of hours contact is made in an organisation will go a long way to ensuring that employers are prepared for the new legislation as they can limit and address these problem areas before the new requirements commence.

For example, if specific teams within the Company operate over different time zones, it may be worth specifying at the beginning of each task or project, or in each particular correspondence, that employees are not expected to deal with this contact outside of their ordinary hours according to the local Australian time zone. 

In addition, if employees work across multiple roster patterns which may not overlap, or managers work a more flexible span of hours, it may be worth delaying the sending of non-critical correspondence until the target employees recommence work. Further, clear instructions at the beginning of each set of correspondence specifying that there is no obligation to respond to the correspondence, and/or specifying the reasonable grounds for which the correspondence was sent, is a further way that managers can take practical steps to avoid disputes under these new provisions. 

Having informed managers and decision makers

Managers and workplace relations practitioners should now factor this new right into all key employment decisions. Importantly, this includes being cognisant that no adverse action can be taken against an employee due to their exercising of their right to disconnect. 

This obviously applies to the decision-making process when considering dismissing an employee, but also to all other forms of disciplinary action, including demotion or issuing any warning or other workplace sanction. 
Unfortunately for managers, there are a litany of potential ways employers could inadvertently contravene the new protections. For example, considering one class of employees favourably for pay increases or promotion over another group because they are more likely to respond to after-hours contact could be grounds for a contravention under the new laws.

Further, decisions to performance manage or discipline employees may be rebutted with claims that the management actions are being brought due to the employee refusing to respond to unreasonable out of hours contact. 

Employers should therefore ensure that the key decision makers in their organisation are aware of how the right to disconnect interacts with the general protections provisions in the Act to avoid employees lodging general protection claims that can often involve costly and lengthy litigation.  

Utilising and updating employment contracts

For most employees not covered by an enterprise agreement or a modern award, their contract of employment will specify that their annual salary includes compensation for ‘reasonable additional hours’. Generally, a figure outlining the monetary compensation provided for these hours, or a list of what duties may be required after hours, is not provided.

Considering the introduction of the right to disconnect, employers should consider being more diligent when drafting remuneration terms in contracts. This could involve inserting expectations regarding after hours contact and related compensation into an employment contract. This is particularly important considering the new provisions require the FWC to take into account whether employees receive compensation to work additional hours or to remain on standby outside of their ordinary hours, when deciding whether out of hours communications are unreasonable. Employees would then have a clear understanding about the nature of their role and the expectations around what they may consider unreasonable contact.

The FWC is more likely to find that after hours contact is reasonable if the employer was clear with the employee about the requirement for the employee to deal with afterhours contact to perform the inherent requirements of their role and that specific compensation is provided acknowledging these specific requirements. This will be especially so if this clarification was provided in the specific written terms of the employee’s contract of employment which was made at the time the parties entered into an employment relationship.

Developing clear policies and guides

Implementing clear expectations in the workplace that deal with out of hours contact will be key to ensuring both employees and managers are across their obligations under the new rules.

Such policies should include practical rules governing why and how out of hours contact should be made to employees. 

At a minimum, any workplace communication policy should outline that employees are not required to respond to unreasonable out of hours contact and that managers should consider the urgency and reason for contacting an employee outside of their ordinary hours before that contact is made.

Equally, employees should be informed in an equivalent policy that the right to disconnect does not mean a blanket prohibition on after hours contact, nor that they can selectively choose to respond to certain communications from their employer. 

A best practice policy would confirm that if an employee has concerns about outside of  hours contact that they consider could be unreasonable, they should first raise their concerns with their manager before refusing to respond. This is because the employer may deem the particular out of hours communications reasonable or consider that they form an inherent requirement of the employee’s position. Having clear lines of communication for managers and employees who have concerns about the right to disconnect reduces the risk of disputes being raised beyond the workplace level or the FWC issuing an adverse decision or order against the organisation.

Using Technology to your advantage

For those workplaces where employees are encouraged to work flexibly, including at times which are suitable to them, employers may wish to give some thought to whether there are technological solutions to ensure an organisation doesn’t run afoul of an employee’s right to disconnect. These solutions might include by lines on email signatures that sign post while a person is working at a time which suit them, they do not expect a response to their email until the recipient commences their usual hours of work or introducing hold rules which allow emails to be sent, but do not release them until the workplace’s ordinary hours of work commence, or even an individual’s hours of work. 

Setting expectations with clients and suppliers

The new rules make no exception for after hours contact that is sent to an employee by a third party. This could include contact emanating from external contractors, clients, suppliers or stakeholders that the employer would nonetheless still be accountable for under the new provisions. 

Conveying the Company’s expectations regarding out of hours contact to these external parties is key to avoid contravening the new right. One practical measure an employer could take is to include a term in the scope of work or terms of engagement that is generally issued before each new engagement with a third party that specifies that employees may refuse to monitor, read or respond to contact that is made after hours.

Further, being pro-active in ensuring third parties are aware of the right to disconnect requirements on the Company is key for managing expectations about when work and responses to emails or correspondence can be expected. 

Staying on top of key updates

Employers should keep an eye out for any updates from the FWC containing guidelines or case summaries that deal with the new provisions. 

As the right to disconnect is the first legislated right of its kind in an Australian setting, seeing how tribunals and courts apply these novel and complex provisions will be key for employers to understand and apply them.

HSF will continue to monitor all Government and FWC updates impacting the right to disconnect and update our clients with the latest and best practice approaches for complying with the new right.