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What you need to know about the new ‘right to disconnect’ laws

What you need to know about the new ‘right to disconnect’ laws

Do you know about the new right to disconnect laws? 

In August this year, your employees will have a legal right to ignore late night calls and refuse all contact from you after work hours. This means in some circumstances, they can refuse to pick up the phone or respond to your messages. 

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This new right doesn't prevent employees from putting in additional hours if they’ll be compensated accordingly, but it ensures they have the right to disconnect from 'unreasonable contact' from your organisation outside their working hours. 

So, how your organisation communicates with and contacts employees outside of work hours is about to change radically. Let’s look at what this means for employees and your organisation.

How?

The right to disconnect is new legislation by the Federal government under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 that gives employees the right to disconnect from their work obligations outside work hours. It comes into effect on 26 August 2024 for most employers and 26 August 2025 for small businesses.

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Employees have a legal right to refuse to read, monitor or respond to any unreasonable contact. This right extends to contact from other employees, suppliers, clients or third parties if the contact relates to the employee’s work. 

The opposition government indicated they would repeal this legislation if they were the government of the day. But because the next election is over a year away, it’s not worth counting on a change of government to rehaul this legislation.

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Why?

It’s not all doom and gloom. Many organisations, like yours, may already have unwritten rules, expectations or guidelines that govern how your organisation contacts employees outside of work hours. 

For decades, organisations have been able to work through these issues privately without the help of legislation. If that sounds like your organisation, you may simply need to formalise this procedure and let employees know about their new rights. 

The new era of hybrid work has meant some disadvantaged employees and minority groups in the Australian workforce have been taken advantage of and are found to be working longer than usual. This has brought about a need in the current government's mind to protect employees and essentially give them a legal right to tell you, to talk to the hand. 

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It’s important you understand what this means for your organisation, get your lawyers to start reviewing contracts and internal procedures, and prepare yourselves so you know how to navigate this new legal right.

 

What is contact?

What constitutes ‘reasonable contact’ is not defined. However, we suggest taking a conservative approach and assume it will cover a broad interpretation to include calls, texts, emails, messaging services (Teams, WhatsApp) and any effort you make to contact an employee. 

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The right to disconnect does not apply when the employee’s refusal is unreasonable. So, if an employee is the only person who can solve an urgent issue that requires a password or has the keys to a safe, it would be unreasonable for the employee to refuse your attempted contact. 

The new legislation does not define what factors will be relevant in considering whether a refusal is reasonable. As a general rule, if you need to contact an employee and aren’t sure if it’s reasonable, ask yourself these questions: 

  • Is it urgent contact?
  • Is it more reasonable to call, email or text? Will one of these methods cause more disruption?
  • Will the employee be compensated for working outside of their ordinary hours?
  • What are the employee’s current personal circumstances, including holiday, personal leave, family or caring responsibilities?

Professor Josserand at the University of New South Wales thinks the level of responsibility will be an important factor. “It would be reasonable to expect a high-level manager to respond to an urgent email after hours, whereas the same wouldn’t apply to an entry-level worker.”

The right to disconnect does not stop you from contacting an employee outside regular hours. It just means you need to rethink how you communicate. For example, if you operate internationally, you will need to consider the expectations of your Australian employees in terms of attendance at calls/meetings outside of their working hours.

 

Now what?

Or what should I get the lawyers to do? Here are some thought starters that are worth considering and bringing to your next management meeting:

  • Review employment contracts and see if employees are compensated with an expectation to be contactable outside of regular working hours
  • Review current policies and procedures regarding employees being contactable outside regular working hours
  • Create a training program for managers to ensure they are aware of the changes and do not reprimand employees if they reasonably refuse after-hours contact
  • Make sure employees are aware of their new right to disconnect

You might conduct a review and realise that you don’t often contact employees outside working hours, and this legislation doesn’t really affect your organisation. 

But if that’s not the case, you must consider the out-of-hours contact currently occurring within your organisation.

The government will publish guidelines on how the legislation works, and we’ll keep an eye out for it when it’s released. 

 

More questions?

Great! Like the rest of corporate Australia, get in line! 

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The thing is, we’re not lawyers. So, it’s best to contact your legal team and ask them to review the legislation and form a view on how these changes might affect your organisation. 

 

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