Your Right to Disconnect
From 26 August 2024, employees will formally be given the right to disconnect from all workplace communications outside of regular working hours. Introduced as part of the “Closing the Loop” reforms, the main driver behind the changes includes protecting the health and wellbeing of workers.
Background
These new laws are an important step in encouraging sensible conversations about the importance of rest, availability, and whether it is entirely necessary for workers to work outside of hours.
France was the first to introduce these laws as a response to concerns about the welfare of their workers who were increasingly connected to their workplace as a result of technology. Other countries who have implemented these laws such as Belgium, Italy, Ireland, Portugal, Spain, Slovakia and Greece.
What is the right to disconnect?
The right to disconnect allows an employee to refuse all forms of contact from their employer outside their working hours, unless that refusal is considered “unreasonable”. The scope of this will apply to emails, texts, Microsoft Teams messages and any other contact that is not reasonable.
It must be noted however, that the right to disconnect does not constitute a prohibition on employers contacting employees outside of working hours. An employer is still able to do this. The question is whether an employee can reasonably refuse to respond or not.
Going forward, where employees exercise this right, the Fair Work Commission (FWC) will have the power to issue orders that stop repeated unreasonable contact. It must be noted, the FWC does not have the power to order financial compensation. However, it remains to be seen how an employee will be able to leverage this right within their workplace.
The new laws will come into effect on 26 August 2024 for non-small business employers and 26 August 2025 for small businesses. A small business has been defined as fewer than 15 employees and non-small businesses are 15 or more employees.
Determining whether contact is reasonable
In determining the circumstances of what might be considered “reasonable” contact from an employer. Whilst it is likely that views will vary on a case by case basis, guiding factors as to reasonability include:
Why the contact was made;
How the contact was made or was attempting to be made;
The nature of the employees role and responsibilities within that role;
The employees usual working hours;
The extent to which the employee is compensated for these hours out of work; and
The employees personal circumstances.
Some industries may have difficulty traversing these challenges. These include transport and hospitality workplaces where there is a need to communicate across time zones where it may be considered ‘necessary’ for employers to contact employees outside of working hours and ask them to come in early. Some foreseeable issues where working after hours is entrenched within the culture, employees may be reluctant to exercise their right to disconnect. A refusal to make contact within these industries may also cost employees further opportunities.
There are questions about how the right to disconnect will apply to organisations that require after hours calls with different time zones or where extensive travel is required. As mentioned above, the reasonability of these calls will likely depend on the employee’s role and whether they are compensated correctly.
As previously noted, several European countries have been the influencers for the Right to Disconnect provision, however in 2021 the Fair Work Commission approved an Enterprise Bargaining Agreement (EBA) for nearly 17,000 officers in the Victoria Police Force. The were provided with the right to disconnect except for a genuine emergency or concern for welfare situations.
The Fair Work Commission have produced a fact sheet to assist in some of the intricacies of its application. Right to disconnect fact sheet (fwc.gov.au)
Essentially, if the employer consistently contacts the employee and the grounds are deemed as unreasonable, then the employee can exercise their right to disconnect and apply for a Stop Order.
It is important to note, that before an application to the Commissioner can be made, the employer and employee must attempt to resolve the matter between them. If a resolution is not reached, then the new laws will protect the employee if it can be established the contact made is unreasonable.
The change adds a new right for a general protection claim, if the employer was to take adverse action against the employee because they exercised their right to disconnect.
If you are an employee or employer with employment law queries, please contact Voice Lawyers by booking through our website, or if you would like a second opinion, come and speak with us or call 02 9261 1954.