What is the “right to disconnect”?
Employees will have the right to 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.
When will an employees’ refusal be unreasonable?
A refusal may be unreasonable taking into consideration the following (non-exhaustive) factors:
- reason for the contact (or attempted contact);
- how the contact (or attempted contact) is made and the level of disruption this causes the employee;
- whether the contact is required under a law of the Commonwealth, State or Territory;
- extent to which the employee is compensated:
- to remain available to perform work during the period they are contacted; and
- for working additional hours outside their ordinary hours of work;
- nature of the employee’s role and level of responsibility; and
- the employee’s personal circumstances (including family / caring responsibilities).
What will happen in the event of non-compliance?
Should there be a disagreement regarding whether a refusal was unreasonable, the employer and employee(s) must attempt to resolve the dispute between themselves internally. If both parties are unable to resolve this internally, they may then apply to the Fair Work Commission, who will have the power to impose orders on either party, for example: a) requiring the employee to stop refusing some types of contact; or b) ordering the employer to stop certain contact attempts.
Whilst employers will not be penalised for contacting employees outside their working hours, an employer may be penalised if they take adverse action against an employee for exercising their right to disconnect.
So, what should employers do now?
Employers should familiarise themselves with the new right to disconnect for employees to ensure they are compliant once this comes into effect, including updating any employment contacts and internal policies to clearly state expectations on contacting outside working hours. In addition, employers should ensure all employees are aware of their obligations and that they have procedures in place for when contacting outside working hours may be necessary. If you need any support with this, or would like any further information, please get in touch with a member of the MDR ONE team.
