The recent introduction of the “right to disconnect” under Australia’s closing loopholes legislation has sparked significant debate and confusion.
As Steve Forster, Employment Law Expert at EPG Legal (service partner of Xemplo), aptly points out: “I think some of the hype may be a bit overblown. But that said, this is still a new entitlement. Because it’s a new entitlement, employers will need to consider how the change applies in their own business, then implement processes and policies to support their team.”
In this article, we explore the definition of Right to Disconnect, factors for you to consider, as well as provide a free policy template that you can use wholesale (or simply adapt) to get started.
What is the "right to disconnect"?
The “right to disconnect” essentially grants employees the power to refuse to engage with work-related communications outside of their regular working hours, unless such refusal is deemed unreasonable.
Unlike similar laws in France and Canada that outright prohibit employer contact after hours, the Australian approach is more nuanced. According to Steve Forster, “employers and third parties are not expressly prohibited from contacting employees outside the employer’s working hours.” In other words, the law focuses on the reasonableness of the employee’s refusal to engage.
Factors influencing reasonableness
Several factors determine whether an employee’s refusal to connect is reasonable:
- The purpose of the communication plays a critical role. For instance, contact for emergency reasons or addressing immediate work issues may be deemed more reasonable.
- How the communication is delivered also matters. Is it a phone call, an email, or a message through an internal system?
- The extent to which the contact disrupts the employee’s personal time is significant.
- Whether the employee is compensated for being available outside regular hours is another key consideration.
- The employee’s job role and responsibilities, including their seniority and whether their role typically involves out-of-hours work, are also relevant.
- An employee’s personal and family responsibilities can influence what is considered reasonable.
Forster continues, “the circumstances are personal to each employee and a blanket rule probably can’t apply."
Practical implications for employers
Employers must tread carefully to avoid potential pitfalls. “Disciplining an employee for a reasonable refusal to connect could trigger adverse action consequences under the act and therefore exposure to penalties,” Forster warns. Furthermore, decisions regarding pay rises or promotions should not be influenced by an employee’s exercise of their right to disconnect, as this could lead to claims of adverse action.
Proactive steps for employers
To navigate this new landscape, Steve Forster recommends several proactive measures:
- Open conversations about working hours and expectations are essential.
- Employment contracts and internal policies should reflect the new requirements.
- Performance expectations regarding after-hours contact must be clearly defined.
- Tools that delay the sending of emails or indicate no immediate response is expected can be useful, especially for employees working across different time zones.
- Ensuring managers and members of leadership teams understand when and how to contact employees is critical to compliance.
Free Right to Disconnect Policy download
Once you’re ready to communicate these changes to your wider workforce, you’ll need a policy document that clearly states your expectations so that everyone is on the same page about intent and expected behaviour.
We’re here to help with our latest policy template for download – the Right to Disconnect Policy. To use the policy:
- Download the policy template.
- Update the template with your business-specific details.
- Distribute or make available to all team members.
Xemplo customers may automatically distribute policy documents to team members at specific points of the employment lifecycle, including on commencement or targeting team members in specific roles. To find out more about our document management, click here.
Looking ahead
The Fair Work Commission has been given dispute resolution powers to handle disagreements about the right to disconnect. Steve Forster explains, “We will get a lot more guidance on this once those disputes are being heard and determined.” However, waiting for disputes to arise is neither practical nor cost-effective. As Forster also notes, “no one actually wants to get into a dispute or to get one of those orders.”
While the right to disconnect introduces new challenges, with thoughtful implementation and ongoing education, employers can adapt successfully. By embracing these changes, companies can foster a healthier work-life balance for their employees, ultimately leading to a more motivated and productive workforce.
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