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What your business needs to know about the new laws

 
One of the key reforms passed yesterday by the Federal Government as part of the Fair Work Legislation Amendment (Closing Loopholes) Bill No 2 2024, was the ‘right’ for employees to 'disconnect’.
 
The use of the phrase disconnect is a little misleading as the new right is in effect a right to ‘refuse’ or ‘ignore’.
 

Summary

 
In simple terms:

• The new right allows an employee outside of their working hours to refuse to monitor, read or respond to contact or attempted contact from their employer.
• This right also extends to a third party contact such as a client or customer.
• This includes monitoring a phone or email and responding to calls, texts or emails etc.
• This does not prevent you or a third party ringing an employee, texting them or sending an email outside of working hours.
• The right to refuse cannot be exercised if the refusal is unreasonable and the legislation provides guidance on what might affect this test.  
• The right operates for the purposes of the adverse action / general protection provisions of the Fair Work Act.
• The laws apply to all employees covered by the Fair Work System including award and enterprise agreement free employees (subject to when they commence).
• The Fair Work Commission is empowered to deal with disputes about the new right.  
• The Fair Work Commission will have a ‘test case’ this year to include a clause in all modern awards dealing with this new right.

As you consider the detail set out below, many might see this as relatively uncontroversial and fair especially in a world where connectivity has become instant using smart phones etc.
 
Clearly some industries regularly contact employees outside work hours for reasonable and necessary reasons.
 
The question will be how the test of unreasonableness will be applied over time.
 
While it might have some obvious tension points in a white collar environment (the late night email and expectation of a reply from the junior sales representative) in a blue collar environment it may introduce some areas of unintended tension:

• Next day rosters being text the night before.
• Call back requests being text to employees at night.
• Ringing-in to receive a morning start time or location.

 
It is important that you consider the forms of outside working hours communications you currently use in your business and whether these could be claimed to be unreasonable by an employee and how you will challenge or otherwise work around this if it is unreasonable.
 

The Detail

 
What does ‘disconnect’ entail?
 
The new s 333M of the Fair Work Act 2009 (Cth) (FW Act) provides employees with the ‘right’ to refuse to monitor, read or respond to contact, or attempted contact, from:

1. their employer outside of the employee’s ‘working hours’ unless the refusal is ‘unreasonable’ (s 333M(1)); and/or
2. from a third party if the contact or attempted contact relates to their work and is outside of the employee’s ‘working hours’ unless the refusal is ‘unreasonable’ (s 333M(2)).

Importantly, s 334(M)(4) states that this ‘right’ falls under the definition of a ‘workplace right’ within the meaning of the general protections provisions of the FW Act. That is, an employer who treats an employee adversely because the employee has exercised this right, or has proposed to exercise this right, will be taken to have breached these provisions.   
 

What is ‘unreasonable’?
 
Section 333M(3) sets out that when determining whether a refusal is ‘unreasonable’, the following factors must be taken into account (without limiting other factors that may also be taken into account):

1. the reason for the contact or attempted contact;
2. how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
3. the extent to which the employee is compensated:
   1. to remain available to perform work during the period in which the contact or attempted contact is made; or 
   2. for working additional hours outside of the employee’s ordinary hours of work; 
4. the nature of the employee’s role and the employee’s level of responsibility; and
5. the employee’s personal circumstances (including family or caring responsibilities).

Having regard to the above, whether a refusal is ‘unreasonable’ will be contextual to individual circumstances; how, when, why, who.

Interestingly, a key part of the legislation is whether the contact occurs outside of an employee’s ‘working hours’. The term ‘working hours’ is contrasted with the term ‘ordinary hours of work’ so working hours is a broad term and includes reasonable additional hours outside of ordinary hours of work.

This obviously makes sense as an employer has to be freely able to contact employees during all “working hours”.  


How are disputes resolved?

In the event that a dispute arises in relation to an employee’s refusal to be contacted outside of their ‘working hours’, the legislation requires that the dispute must be first discussed at the workplace level.
Once this has occurred, and no resolution has been reached, one of the parties has the liberty to apply to the Fair Work Commission (Commission) to resolve the dispute. The Commission has the ability to make any orders that it considers appropriate (other than an order for the payment of monies), which includes orders to:

1. employees to stop refusing contact; and/or
2. employers to stop taking certain actions (such as disciplining the employee for their refusal to make contact and/or requiring the employee to make contact).

When do the laws commence?

The laws are to commence six months after receiving Royal Assent (and 18 months after Royal Assent for small businesses) – likely August 2024 and August 2025 respectively).

The right for employees to disconnect will also no doubt be increasingly made as a claim during bargaining for enterprise agreements (for entitlements over and above the legislation), and there will also be a test case in relation to how the right to disconnect will be included in modern awards shortly which ABLA will be engaged in.

What should employers do?

Employers should consider taking the following steps:

1. It is important that you consider the forms of outside working hours communications you currently use in your business and whether these could be claimed to be unreasonable by an employee and how you will challenge or otherwise work around this if it is unreasonable.
2. Educate managers and where relevant employees on your expectations for contact outside working hours and why.
3. If you are a policy-based company, draft and implement a policy (or at least a policy position) in respect of outside working hours communication - especially technology based.
4. Review and potentially amend contracts of employment to ensure that if an employee is being paid above a minimum award rate, part of their remuneration is specifically stated as being paid in contemplation of outside work hours communication.
5. Encourage managers to respect employees’ reasonable privacy outside of their working hours and avoid unnecessary contact.
6. Implement a procedure for employees to follow if they consider that they have concerns that their manager/supervisor is contacting them unreasonably outside of their working hours.

This is one of the many reforms passed as part of the Fair Work Legislation Amendment (Closing Loopholes) Bill No 2 2024.  To make sure you are across all the significant amendments, review the comprehensive updates listed below.

If you need to discuss your specific business circumstances, please get in touch with one of the workpalce and employment specialists at info@ablawyers.com.au.

                      

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