From 26 August 2024, employers with 15 or more employees have to respect employees’ right to disconnect from work outside their contracted working hours. Smaller employers will have those obligations 12 months later. What does it mean for your business and what do you need to do?  

What is the right to disconnect?

Here is how it is described in the Fact Sheet published by the Department of Employment and Workplace Relations:

“The right to disconnect will inform how employers and employees interact outside  of working hours. The right does not prohibit employers from contacting their employees, nor does it prevent employees from contacting each other, including across time zones. Rather, the employee will be able to refuse to monitor, read or respond to contact, or attempted contact outside of working hours, when they are not expected to be working or paid to be working, so long as doing so is not unreasonable.” 

So it doesn’t prohibit making contact with employees outside their contracted working hours – it just provides that they don’t have to respond to such contact outside their contracted working hours other than in limited circumstances.

The real obligations on employers are to not unreasonably require someone to respond to contact after hours and not to penalise people for exercising their right to disconnect. 

Inclusion in modern awards

The Fair Work Commission has been tasked with inserting “right to disconnect” clauses in modern awards. 

The approach it is taking is to have a standard clause which is customised according to existing provisions in Awards which might have relevance to contact after hours such as standby or call back or roster change provisions. 

So you need to consider which awards cover your employees, what provisions they might have in regard to out of hours contact and how those provisions relate to your own operations.

It is also something that you will need to consider in enterprise agreements.

What do you need to do?

In our blog back in February on Managing disconnection from work, we noted that this really should not be that big an issue for most organisations so the first thing you should do is ignore all of the hype about it. 

Then you should undertake a constructive assessment of the effects for your organisation and your people by answering the following questions:

• Are there any situations where employees in your organisations need to be responsive to contact outside their standard working hours for genuine operational reasons?
• Are there provisions in a modern award or enterprise agreement which deal with the specific type or cause of contact eg someone being on standby or being called back or being contacted about a roster change or some other prescribed matter outside their standard working hours?
• Are employees remunerated for making themselves available for contact outside working hours under the provisions of a modern award or enterprise agreement or otherwise under their contract of employment?
• Do you have any employees who have flexibility in their hours and location of work and whose working hours might fall outside standard operating hours via a flexible working arrangement or agreement or by individual choice?
• Do you have any protocols in place regarding out of hours contact for people who may be working outside standard working hours eg contact to other staff or external parties should only be via email with the scheduling function used to delay transmission until the start of the following working day?
• Do you have any protocols in place with external parties in relation to their contact and their response expectations with your staff outside standard working hours?
• Do any of your people have to operate across timezones which might cause communications to occur outside an employee’s standard working hours?
• Do any of your managers unreasonably or unnecessarily send communications to their people outside their standard working hours, expecting them to respond outside those hours?
• Do any external parties unreasonably and unnecessarily send communications to your people outside their standard working hours, expecting them to respond outside those hours?
• Do you have people who you know will respond to out of hours contacts even if you don’t want them to?
• Do you deal with out of hours contact requirements in your contracts of employment?
• Do you verify adequacy of remuneration having regard to out of hours contact requirements where an employee is expected to respond to specified contacts?
• Do you deal with out of hours contact happenings in your performance and development conversations?
• Do you have a properly structured and communicated “Life balance policy” which includes details on the organisation’s expectations and processes for management of out of hours contact and the employee right to disconnect? 

Other tips

As with any matter around people and culture, we encourage you to look at these things on 3 levels – organisational, team and individual – and please do that by engaging with your people in determining what the realities for your business and people are and covering off all of the bases. 

Remember it is about your business and your people so don’t just borrow or buy a policy statement from someone else and remember our 4C compliance model because unless you do all 4Cs, you are not truly compliant:

We can help you to get the right answers to all of the questions that we have said you need to be asking in determining how your business is going to responsibly manage your employees’ right to disconnect.

We can advise you on remuneration in line wth award provisions and we can be-you with policies and employment contracts as well as advices to ay “problem individuals” who might need to modify their habits so as not to interfere with other employees’ right to disconnect.

If you would like to learn more about ways that we help with this or any other HR issue, please call us on 0438 533 311 or email us at enquiries@ridgelinehr.com.au.