Australia: 'Right to Disconnect' Checklist

As you may know, the new right to disconnect commences in just under 2 months on 26 August 2024 (or 2025 for small business employers).

Under the new right to disconnect an employee may refuse to monitor, read or respond to contact (or attempted contact) from their employer or a third party outside of their working hours, unless the refusal is unreasonable. Whether the refusal is unreasonable will depend on a range of circumstances specific to the working relationship.

To assist you with getting ready for the upcoming changes, we have prepared the below checklist of practical steps that your business can start implementing now so that it is ready for August.

Have you considered the structure of your workforce? Do your employees work flexible hours? Are they spread across different time zones and roster patterns?

If specific teams operate over different time zones or across multiple roster patterns, it may be worth specifying at the beginning of each task or project what the expectations are in relation to contact outside of an employee’s ordinary hours.

Have you conducted training for your decision makers and line managers?

Managers need to be aware of the new right to disconnect and understand how it factors into their key employment decisions on a day-to-day basis. This includes being cognisant that no adverse action can be taken against an employee due to their exercising of their right to disconnect. 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.

Have you conducted training for your in-house counsel and HR team?

The right to disconnect introduces legal changes, which impact how your in-house counsel and HR team manage workplace issues. This includes new ‘Stop Orders’, a new right to disconnect model term in modern awards, and rules in relation to more favourable terms regarding the right to disconnect in enterprise agreements.

Have you updated your employment contracts?

Reviewing and updating your employment agreements is important because the Fair Work Commission is more likely to find that after hours contact is reasonable if the specific written terms of the employee’s contract were clear about the requirement for the employee to deal with after hours contact to perform the inherent requirements of their role and that compensation is provided acknowledging these specific requirements.

Have you updated your policies and guidelines?

Policies 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 or third parties.

Have you effectively communicated with third parties?

The new rules make no exception for after hours contact sent to an employee by a third party including external contractors, clients, suppliers or stakeholders. We recommend you consider how best to manage expectations regarding out of hours contact to these external parties to avoid contravening the new right.

Have you considered how you might use technology to your advantage?

Consider updating email signatures to outline that while a person is working at a time which suits them, they do not expect a response to their email until the recipient commences their usual hours of work. You could also introduce hold rules which allows emails to be sent, but not released until the workplace’s ordinary hours of work commence, or even an individual’s hours of work.

If you would like more information or advice on how your business can prepare for the right to disconnect, please reach out to a member of our team.