'An employee can refuse to respond to or acknowledge out-of-hours contact if it's not reasonable', lawyer says
Australia is set to introduce a “right to disconnect” after the Senate passed the second Closing Loopholes bill.
The Greens advocated for the new legislation, with the amendment giving employees the right to refuse contact from their employer outside of work hours unless that refusal is unreasonable.
In deciding for reasonable contact, the party said factors including reason for contact, the level of contact, compensation, job role and responsibility, and workers' personal circumstances will be considered.
"Where the issue cannot be resolved at the workplace, and the behaviour continues, the Fair Work Commission can issue stop orders," the Greens said in a statement. "If they are breached, the normal civil remedies of the Fair Work system will apply."
The second Closing Loopholes bill was passed in parliament on 12th February 2024 and is awaiting royal assent. And the new right to disconnect will be enforced six months after royal assent.
But what will this right to disconnect mean for employers?
Defining right to disconnect
Australia will join other countries that have implemented a right to disconnect such as France and Canada.
Natalie Gaspar, partner at Herbert Smith Freehills, said the right to disconnect sits within an area of law that is already well-regulated.
“We've got protections in the National Employment Standards, which say that you as an employee cannot do more hours than 38 unless they're reasonable additional hours,” she told HRD Australia. “And there's an element to reasonableness which takes into account your remuneration, what the nature of your job is and the nature of the operations.”
A lot of Australians are covered by either an enterprise agreement or an award, she said, which sets out a mechanism not only saying that ‘Your hours of work are this’, but you get paid an enhanced rate of pay if you are working additional hours.
“And then we've got a whole suite of other laws with an increased focus on psychosocial safety of employees. And that's making sure that people don't burn out and that there's limits on where and when people are available.”
Nonetheless, the right to disconnect will more likely affect office workers or other professionals who need to use technology as part of their roles, Highlight said.
“The laws do not prohibit an employer or a third party – for example, a client – from reaching out to someone outside of their core business hours, so to speak,” she explained. “But an employee can refuse to respond to or acknowledge that out of hours contact if it's not reasonable in the circumstances.”
No criminal penalties with right to disconnect
In addition to the right to disconnect, a new paragraph will be included in the Fair Work Act to ensure that if a person contravenes the new right to disconnect, they won't face a criminal penalty.
“There was another late amendment to make it clear,” Gaspar said. “[If] an employee said, ‘Well, no, I'm not going to respond to that email. It's not reasonable and I refused to do so’. That employee can go to the [Fair Work] Commission and ask for an order to stop an employer from contacting them or requiring them to respond… so not dissimilar to the way we have stop orders for bullying.
“And that amendment has clarified that an employer will not be criminally liable if it fails to comply with that stop order granted by the Commission.”
Employment contracts with new legislation
Some organisations are already looking at their employment contracts to make it clear on what is considered reasonable based on the factors the Commission will take into account when granting a stop order, Gaspar said.
“Some sort of contractual acknowledgement from employees that, because of the nature of their role, occasionally they will be required to respond to business hours where it's reasonable,” she said.
Gaspar added that their firm has also received instructions from businesses to look at some type of policy guidelines for managers. For example, a policy could require managers to send an email that is clear about whether they need a response outside of an employee's core business hours, she explained.
“Again, it's not prohibiting me, for example, from sending one of my lawyers an email asking them to review an employment contract or draft an affidavit or whatever it is,” Gaspar said.
“But what might be good is to say, ‘I do not require you to action this now’ or ‘I do require you to action this now because’ – again, going to the reasonable acknowledgement – ‘We are in court tomorrow morning for an urgent injunction’. So [it’s about] justifying the timing requirements and being really clear about what's required when and educating line leaders about what that looks like.”
While the new law may not fundamentally change the way many businesses operate or contact their employees, for others, it could require more action to be taken, she said.
“Employers who are doing the right thing already, I don't think will be profoundly affected by this change at all,” Gaspar said.
“If there is in that due diligence assessment [consideration] as to what out of hours work looks like, if it does require some job redesign, maybe that is appropriate or necessary.”
