Practical Steps in Readiness for the Right to Disconnect

You are currently viewing Practical Steps in Readiness for the Right to Disconnect

There has been a lot of media discussion regarding the federal government’s ‘Right to Disconnect’ laws as contained in the Closing Loopholes (No. 2) Bill.

The law received royal assent in late February, meaning it will commence on 26 August 2024 generally, and for small businesses on 26 August 2025.

Not a blanket right to disconnect

The new laws broadly give employees the right to refuse to monitor or respond to contact from their employers outside their normal working hours. This also includes contact from co-workers, suppliers and clients of their employer.

It is important to note that the changes do not give employees an all-encompassing right to disconnect. An employee will not be allowed to disconnect when it is unreasonable to do so.

What is unreasonable is a factual enquiry and will vary from case to case. It may be reasonable for a shop clerk to refuse a phone call from their employer; it’s less likely it’s reasonable for a doctor on call to refuse to pick up.

Other factors to consider include:

  • The reason the employer tries to contact the employee;
  • The employee’s role and responsibilities, including whether they are compensated for remaining available outside their normal working hours; and
  • The employee’s family and personal circumstances.

There is a conceptual difficulty at this point.

The legal inquiry is whether the employee has acted reasonably in disconnecting. But if the reason an employer is calling is one of the factors to consider, an employee may not know what that reason is unless they actually monitor the communication.

In other words, if an employer is calling about a work emergency, how will the employee know whether it’s an emergency or not without taking the call or at least monitoring their messages? And if they don’t know whether it’s an emergency, can they be deemed to be acting reasonably if they ignore the call?

It remains to be seen how this issue will be worked out.

Practical Steps

There are a number of practical steps employers can take now in readiness for these changes.

In particular, they should review employment contracts and work policies to see what provisions, if any, are in place concerning after-hours contact.

Employers should also review position descriptions for their staff. Often, these documents are outdated and do not reflect actual practice within a business. If contact outside normal hours is to be expected, then position descriptions should be updated to reflect this. This may also include a remuneration review for the position.

Keep an eye out for Aintree Group Legal’s podcast on this topic (as part of Aintree Group’s Plant Grow Reap podcast) in the coming weeks.

We will also be happy to discuss your business with you further. Contact us today.