Right to Disconnect Policy

• their employer outside of the employee’s ‘working hours’ unless the refusal is unreasonable and / or
• from a third party if the contact or attempted contact is related to their work and is outside of the employee’s ‘working hours’ unless the refusal is ‘unreasonable’.

In practice, this means that employees will be entitled to ignore calls, emails, text messages and other forms of contact from their employer and clients, which are received before their working day commences and / or after it ends unless doing so would be ‘unreasonable’.

It is important to understand that the ‘Right to Disconnect’ is not a prohibition on the ability to contact employees outside of working hours. You can still reach out or send communications to employees at any time - the new right only relates to whether an employee is required to respond to that contact.

When will an employee’s refusal be deemed ‘unreasonable?’

In determining whether a refusal is unreasonable, a range of factors relevant to the working relationship are to be considered including:

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

An employee's refusal to engage with contact will also be unreasonable if the contact is required under Commonwealth, State or Territory law.

How might the right to disconnect give rise to a dispute?

The right to disconnect is protected under the ‘General Protections’ provisions of the Fair Work Act.

Whilst you may still contact employees outside of their working hours, it is unlawful to take adverse action (or otherwise discriminate against) an employee because they have lawfully exercised or proposed to exercise their right to disconnect, such as disciplining, dismissing, or not promoting an employee.

The Fair Work Commission is empowered to deal with disputes about the right to disconnect including:

• Making determinations about whether an employee’s refusal is unreasonable.
• Making ‘stop orders’ to stop employees from unreasonably refusing contact; or to stop employers adversely treating an employee or requiring them to continue to accept work-related contact (when the refusal is not unreasonable).

What steps do I need to take in light of this new workplace right?

In order to comply with the new right to disconnect, you should carefully consider the current forms of outside working hours communication you use in your business and whether these could be considered to be ‘unreasonable’ by an employee.

Implementing a workplace policy in relation to the right to disconnect will allow you to establish transparent workplace expectations regarding out-of-hours contact and ensure both employees and managers are educated on their responsibilities under the new legislation. Such guidelines and policies should clearly state the circumstances and methods by which out-of-hours communication with employees should occur.

You may also want to consider reviewing and updating employment contracts to ensure that if an employee is being paid above a minimum award rate, part of their remuneration is in contemplation of outside hours communication. Clear expectations should be set from the beginning when entering arrangements with clients in relation to the right to disconnect. This includes making them aware of their right by including a term which explicitly outlines the right to disconnect legislation in their contract.

Tools to assist with the implementation of the right to disconnect

To assist with the implementation of the right to disconnect, ABLA has created template emails which can be used to educate managers and employees on the new right to disconnect legislation. The templates include an overview of the new right to disconnect, the potential impact of this on decision making, practical tips to consider when communicating with colleagues outside of work hours and what to do should a dispute arise in relation to this right to disconnect.

ABLA has also created a template to provide you with a right to disconnect policy that can be customised to suit your individual business needs. The template includes definitions of key terms, the roles and responsibilities of employees and the employer in relation to disconnecting from work outside of work hours, and the procedure for dispute resolution.

These templates can be used to communicate effectively with employees or managers to ensure they understand the new rights and their responsibilities under the new legislation.

Other relevant factors to consider

In shift work environments where it is incumbent on employees to be available due to frequently changing rosters, employers should be particularly vigilant with their implementation of the right to disconnect.

It is crucial for these employers that benefits provided in exchange for flexibility in responding to communication outside of work hours are clearly outlined in employees’ contracts to help demonstrate that any need for responses outside of regular hours is reasonable.