WE HAVE all heard lots of fear mongering in the media, that the Right to Disconnect will mean employees can happily ignore their employers and customers. But the truth is there is nothing to fear from these new laws. 

Unions have tried to claim this as a big generational win but these new laws will impact only a very few. Good employers were never the target. 

It will, however, place increased administrative burdens on businesses.The Right to Disconnect was introduced as a recalibration after COVID to prevent overly intrusive employers not respecting home time. 

It was also designed to stop toxic and problematic employers who would abuse and even fire employees simply because they were not responding during out of work hours and completing excessive work hours. But these employers only make up a small percentage of Australian employers. 

Under safety law, there are already obligations to ensure a safe workplace which include not exposing employees to excessive work hours and demands. 

The Right to Disconnect has not altered an employer’s existing obligation in any way. It has simply made it more complicated to comply with its safety obligations. Undoubtedly with time, we will see the Right to Disconnect for what it is, another bureaucratic attempt to codify existing safety obligations.  What is the Right to Disconnect?

This new workplace right has been inserted into the Fair Work Act 2009 (Cth), Modern Awards and enterprise agreements and came into effect on 26 August 2024 (one year later for small businesses of less than 15 employees). The misleading narrative pushed by the media and unions suggests that all contact outside of work hours is prohibited. This is false.

There is no restriction on an employer or third party from contacting employees subject to existing safety law. Many of us are busy and will send emails when we get to it, but there is no expectation that we will receive a response immediately – this is still within the law.

All the Right to Disconnect does is give employees a choice. They can choose to refuse to monitor or respond to any contact outside of work hours. And they cannot be punished or disciplined for that choice if it is reasonable as discussed below. 

Does this mean employees can ignore any contact outside of work hours?

The simple answer is no. 

The Right to Disconnect only prevents ‘unreasonable’ contact from an employer or third party. 

‘Reasonableness’ will depend on factors such as how the contact was made, the disruption caused to the employee and the employee’s personal circumstances such as if they have any family or caring responsibilities. Much of the new legislation includes untested propositions and balancing of factors. As usual, little guidance is given. 

The following examples would all be considered reasonable:

• If the is contact is required by law

Such as if the dealership discovered a toxic gas had been released in their service centre and service technicians had unknowingly inhaled the gas. The employer would be obligated under safety law to immediately notify affected employees and require their response to confirm they had received the message and were reporting to the hospital.

• If the reason for the contact is due to an emergency   

For example, if there was a cyber-attack on the dealership resulting in a data breach of customers’ personal and financial details. Relevant employees will need to be notified immediately so that they can manage the communications with affected customers and manage any reputational damage. 

• If the employee has been adequately compensated for working additional hours

Sales consultants may sometimes be required to respond to customer inquiries outside of their working hours, this can be the difference to successfully locking in the sale and their commission. Such contact is permitted if it is their choice to respond to the contact and would be reasonable if they are duly compensated for these additional hours. 

• If the contact can be expected due to the employee’s role and level of responsibility

For example, it would reasonably be expected that a CFO would be contactable in the lead up to month-end to ensure the dealership’s results are finalised on time. 

Additionally, the Vehicle Repair, Services and Retail Award 2020 makes it clear the Right to Disconnect will not apply to contacting employees:

1. who are paid stand-by time e.g. technician that works on emergency truck repairs
2. to notify them in relation to a stand-by; or
3. to notify them of a call-back e.g. emergency service or repair work.
   

   Nina Hoang – Senior associate, workplace relations, FCW Lawyers

What do I have to do to prepare?

Although the Right to Disconnect does not fundamentally change an employer’s obligations, it does require better systems and communication around out-of-work contact and work. Unprepared employers may find themselves at risk of costly workers compensation claims, unfair dismissal claims or even a dispute claim if they are not careful. 

Make no mistake, unions and plaintiff lawyers will seek to weaponize this new workplace right. 

More and more we will see an increase in general protections claims, where employees will try to claim that any disciplinary action was because they exercised the Right to Disconnect. 

There is a reverse onus of proof in such matters, which means it is up to the employer to prove that this is untrue. Unlike unfair dismissal claims, general protections claims are uncapped (so very expensive) and can be filed by any employee even if they have not completed their probationary period. So employers need to come prepared otherwise there are costly consequences.

Luckily, it is not difficult to reduce potential claims with a few easy steps:

1. Review your employment contracts
   1. Are employees compensated for working additional hours?
   2. Do you have a clear clause to address the Right to Disconnect?
2. Consult with employees as to your expectations to avoid misunderstandings and keep written records of these conversations as evidence.
3. Develop an Out of Hours Work Policy.
   

   Maya Sutanto – Partner in the Motor Industry Services group at Pitcher Partners

Key Takeaways

• Right to Disconnect does not materially change existing laws except for the added workplace right that increases litigation risk with employees
• Employers can contact employees outside of work hours and the employee has a choice to respond
• Review your contracts, communicate expectations and develop a policy to protect yourself.

Nina Hoang is a senior associate, workplace relations, FCW Lawyers. Maya Sutanto is a partner in the Motor Industry Services group at Pitcher Partners.