What does the right to disconnect mean for my business?
From 26 August 2024, employees of businesses with more than 15 employees may refuse to monitor, read or respond to contact, or attempted contact, from an employer or a third party outside of the employee’s working hours unless the refusal is unreasonable.
Who does it cover?
The right to disconnect is now a protected right that is recognised in:
1. the Fair Work Act 2009 (Cth); and
2. all modern awards.
This means that the right to disconnect will apply to an employee regardless of whether their employment is covered by a modern award or not.
The right to disconnect does not apply to employees of small businesses yet. If you are operating a small business, that is a business with 15 employees or less by head count including casuals, the right to disconnect starts for your employees on 26 August 2025.
What is an unreasonable refusal?
To determine whether a refusal to monitor, read or respond to contact or attempted contact is unreasonable, the following factors are considered:
1. the reason for the contact;
2. how the contact is made and how disruptive it is to the employee;
3. how much the employee is compensated or paid extra for:
a. being available to perform work during the period they are contacted; or
b. working additional hours outside their ordinary hours of work,
4. the employee’s role in the business and level of responsibility; and
5. the employee’s personal circumstances, including family or caring responsibilities.
It is unreasonable for an employee to refuse to monitor, read or respond to contact if that contact is required by law.
How the factors can impact whether a refusal is reasonable
To give you an idea of how the factors might work in practice, consider the following:
1) An employee’s salary is calculated to provide for occasional out of hours communication. If the employee is adequately compensated to be available to perform work during the period they are contacted or to work additional hours outside their ordinary hours of work, then it may be reasonable for the employer to make contact and to expect the employee to respond. This may also depend on how much extra the employee is compensated and how frequently they are contacted outside of normal working hours.
2) An employee’s hours of work are specifically scheduled around their children’s school pick up times. In their case, it may be unreasonable for the employer to require the employee to respond to contact after they are finished working for the day. This is because the work will likely impact upon the employee’s personal circumstances and family/care responsibilities.
These 2 examples also demonstrate that whether it is unreasonable for an employer to contact an employee may be entirely different for 2 different employees who may otherwise be employed in the same role or at the same level. Additionally, it might be reasonable to contact an employee one day, but unreasonable on the following day based on that employee’s personal circumstances or family/care responsibilities.
What can I do?
There are a few things that employers can do now which would help to ensure that communication outside of working hours is reasonable. The starting point would be the employee’s written contract and checking whether the applicable Award or enterprise agreement contains on-call payments.
We suggest considering inclusions like the following in any written employment contract if it is important to your business that the employee be required to respond to contact from your business outside of working hours:
(1) clauses stipulating that contact within a specified range of hours is agreed to be reasonable (the range would depend on the nature of your business); and
(2) clauses stipulating that part of any over Award amount paid to the employee is to compensate for the requirement to take calls or respond to messages outside of working hours.
If you need assistance with employees at your business, please feel free to get in touch and discuss that with us today (03)57224681.
MORGAN COUZENS LEGAL
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