Debut of Right to Disconnect offers stark reminder for employers

With the Right to Disconnect coming into effect this week (26 August 2024), the Fair Work Ombudsman (FWO) has reminded non-small business employers about their legal requirements.

The wait is finally over – the Right to Disconnect, which is a part of the new Closing Loopholes Bill, has come into effect in workplaces as of yesterday.

The Right to Disconnect means that employees of non-small businesses (a business employing 15 or more employees) now have the right to refuse to monitor, read or respond to contact (or attempted contact) outside of their working hours unless that refusal is unreasonable. This also includes contact from an employer or a third party, which could be a client.

According to the FWO, whether a refusal is unreasonable will depend on the circumstances.

The following factors must be considered:

• The reason for the contact.
• The nature of the employee’s role and level of responsibility.
• The employee’s personal circumstances.
• How the contact is made and how disruptive it is to the employee.
• Any relevant extra pay or compensation they receive for working additional hours or remaining available to work out of hours.

Fair Work Ombudsman Anna Booth said communication between employers and employees is needed regarding after-hours contact, and that set expectations need to be implemented to suit their specific workplace and the employee’s role.

“We encourage workplace participants to educate themselves on the right to disconnect and take a commonsense approach to applying it within their workplace,” said Booth.

“It will be ideal if employers consult with employees and their unions on the policies that apply in the workplace. All modern awards now include a ‘right to disconnect’ term. This means that specific rules are now in awards for how the new right applies to different industries and occupations.”

The FWO has an enforcement role if there is alleged non-compliance with the Fair Work Commission (FWC), which can deal with disputes regarding the Right to Disconnect.

“Like most employment matters, any dispute should first be discussed and sought to be resolved at the workplace level,” Booth said.

“If that resolution does not occur, the Fair Work Commission (not to be confused with the Fair Work Ombudsman) can deal with disputes regarding the Right to Disconnect.”

The Fair Work Commission will be able to make an order, or deal with a dispute as it considers appropriate, to resolve the dispute. This could include orders to stop employees from refusing to contact on unreasonable grounds or for employers contacting their employees out of hours.

An employer may be subject to penalties of up to $18,780 for an individual or $93,900 for a body corporate per contravention for contravening a commission order in relation to the right to disconnect.

Natasha Hawker, managing director of Employee Matters, shared her thoughts on the implementation of the legislation, reflecting on some of the benefits that will come while simultaneously warning employers who fail to meet their obligations.

“Ignorance is no excuse – employers must take action to comply now,” she said.

“Each business needs to determine what works best for their own circumstances, respecting employee rights while maintaining the desired flexibility for both parties. Implementing these changes offers an opportunity to improve workplace communication, attract and retain top talent, and enhance employee engagement by reducing potential psychological risks.”

“These risks are known in the industry as ‘psychosocial hazards’. The alternative is non-compliance, the risk of hefty fines, low morale, decreased productivity, and poor employee retention,” Hawker said.