For employers (other than small businesses), the right to disconnect entitlement commences on 26 August 2024. But with the Fair Work Commission yet to finalise associated modern awards provisions, employers may be left scrambling to get ready for the changes.
What are the changes?
From 26 August 2024, employees will be entitled to refuse to read, monitor or respond to contact from their employer or a third party (e.g. clients) outside their working hours, unless that refusal is unreasonable. See previous article Right to Disconnect: What is reasonable? for details of the entitlement and the test of 'reasonableness'.
Modern Awards
Under the legislative changes, the Fair Work Commission (FWC) is also tasked with including 'right to disconnect' terms in each of the modern awards. During consultation, a series of submissions have been made by both unions and employer associations with, as expected, varying levels of obligations. Many of the submissions made by the unions go well beyond the provision in the Act, seeking to impose obligations on employers and increasing the restrictions on contacting staff. The FWC has now issued a draft proposed clause, which is more closely aligned with the legislative provision. However, consultation remains open until 1 August 2024, leaving open the opportunity for further changes.
It is anticipated that final clauses will not be released until 23 August 2024 and will come into full effect only three days later, on 26 August 2024.
Practical Tips
Despite the uncertainty, there are steps employers can (and should) take now to get ready for the changes.
Training
Make sure employees at all levels understand what the changes mean and how they will be managed within the organisation. Managers, and any other employees who may delegate work, need to understand the circumstances in which they should avoid contacting employees outside normal working hours and, equally, employees should understand that reasonable additional hours and associated contact will still be required and is permitted.
Communication
With flexible working a feature of many workplaces, employees may send correspondence at unusual times (that suit them). Consider whether correspondence sent outside 'normal' business hours should specify that an immediate response is not expected. Many email signatures now include statements to this effect.
Similarly, when contact outside working hours is reasonably required, it may be helpful to both specify this and explain the basis of the urgency.
In circumstances where the entitlement also applies to contact from third parties (e.g. clients and suppliers), it may be worthwhile sending a communication to those parties to set expectations.
Review Contracts and Polices/Procedures
Given that a key consideration for whether a refusal is reasonable includes if whether the employee is compensated for such contact, a review of contracts, position descriptions and policies is critical. Such documents should make clear that certain positions may require contact outside regular working hours, and that such contact is compensated (usually by way of a higher salary).
Implications for you
These changes have the potential to cause business disruption and staff disharmony. It is critical that employers act now to ensure they are ready to meet the challenges that may arise. For advice specific to your business, reach out to the Barry Nilsson Employment & Safety Team.
