Apr 2nd, 2024
In recent years, many governments have passed laws that encourage the separation of work & personal life for both employers and employees. This stems from the pandemic & the associated advent of remote work, which both allowed greater flexibility for all workers while also making it more difficult to fully ‘log off’ from the virtual workplace.
Australia has recently joined in this effort, with the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 having received royal assent on the 26th of February 2024. One of the less precedented changes within this bill is the Right to Disconnect, which gives employees the right to refuse to engage with work-related contact outside of their ordinary working hours. This can include reading emails, monitoring the inbox, or answering calls from employers or third parties like clients.
A key feature of this legislation is to enshrine the right to disconnect within the general protections afforded to workers. This means that employees that exercise this right may not be subject to adverse action (e.g., a formal warning) as a result of choosing not to response to after-hours contact.
That said, it has been recognised that many employees are in fact paid at a higher rate to account for the likelihood of having to work outside of the standard hours. In recognition of this, the legislation specifically only protects reasonable refusal to engage. The reasonability of a refusal is to be determined by considering factors that include, but are not limited to:
- the employee’s rate of pay
- the level of disruption to the employee’s life
- the nature of the employee’s role.
It is worth emphasising that this legislation does
not prohibit employers from making contact with employees outside of work. Employers are still permitted to communicate with their employee at any time provided they do not unreasonably expect a response, as determined by the outlined criteria. Considering the level of disruption may be useful when determining the appropriate type of contact – for instance, a non-urgent update may be sent via email.
Going forward, employers are encouraged to establish clear policies regarding out-of-hours contact and communicate expectations effectively with both current and future employees to ensure compliance and mutual understanding of obligations. As this may be a significant change, employers in non-small businesses have until the 26
th of August 2024 do so, while employers in small businesses will be provided an additional year.
2/04/2024
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