by Nicola Paterson, Law Graduate
Technology pervades our lives. Its omnipresence gives rise to concerns about work-life balance and whether personal boundaries have become eroded. Our culture of connectedness and instant communication can have negative effects on the mental well-being of workers who are unable to unwind and recharge after a day of work.
On 26 February 2024, new legislation ‘regarding a right to disconnect’ was introduced to address some of this concern.
There is much misinformation surrounding the right to disconnect under the Fair Work Act. Popular discourse often suggests the legislation has created a ‘bright line’ rule that employers cannot contact employees after work hours. The reality of how the right to disconnect operates is more nuanced and requires careful consideration of how it applies in any organisation.
Under the new legislation, as of 26 August 2024, employees have a right to refuse to monitor, read or respond to contact outside their working hours unless doing so is unreasonable. The legislation therefore does not prohibit employers from contacting employees. The new legislation is, in actuality, a right to refuse to respond to communications within certain limitations i.e., whether it is unreasonable to do so.
When considering whether an employee’s refusal to monitor, read or respond is unreasonable, the reason for the contact, how the contact is made, the compensation of the employee, the employee’s role and the employee’s personal circumstances must be considered. The effect of considering renumeration and role in whether the employee is acting unreasonably is that the right to disconnect will often not apply to salaried senior staff in the absence of personal circumstances that make it reasonable. Conversely, for minimum wage shift workers, refusing to respond to contact out of hours would ordinarily not be unreasonable.
NFPs and charities employing staff are generally subject to the right to disconnect laws unless they are not a ‘trading corporation’. If your NFP is small (that is, employs less than 15 people) as at 26 August 2024, you have until 26 August 2025 to comply.
The ability to ignore an employer’s requests after hours (unless it is unreasonable) is a workplace right within the meaning of the Fair Work Act 2009. This means that employers are prohibited from taking adverse action against an employee if they exercise their right to disconnect.
Four ways in which NFPs may practically prepare for the legislative changes are as follows:
NFPs should consider what are the current working hours for employees at home and in the office, how frequent out of hours contact is, and the nature of that contact. Consideration should be had to the nature of the contact and the role of the contacted employee. Consider whether that contact could have been avoided by training or information sharing within work hours. Taking stock of your current practices in relation to after hours contact is important in considering what changes need to occur to be compliant with the right to disconnect legislation.
NFPs often are often focused on maximising their limited resources. As such, it is particularly important for NFPs to minimise the need for out of hours contact which may require additional renumeration to be paid to the persons contacted.
NFPs should train managers and employees to ensure they understand escalation points and how to approach out of hours contact so that the need for out of hours contact is minimised where possible.
In some NFPs the services provided may make it inevitable that key staff are not present during all operating hours and may be contacted out of hours. For instance, providing support helplines 24 hours a day may mean issues escalate while senior staff are not there and need to be contacted out of work hours.
Expectations for staff must be managed in the context of the right to disconnect laws. NFPs should:
NFPs should also ensure staff are aware of their rights under the right to disconnect. Staff should also be made aware that disputes should first be raised with their employer.
Management should also be aware of employee rights to ensure that staff are not treated adversely for failing to respond where they have a right to disconnect.