Employers have been urged to proactively set expectations on out-of-work hours contact to avoid disputes under the new right-to-disconnect employment laws.
McCullough Robertson Lawyers Partner Nathan Roberts said there was considerable scope for ambiguity and different interpretations of what was reasonable under the new requirements.
“Rather than wait to deal with push-back, it’s best that employers are on the front foot at setting expectations,” he said.
“That might be in a contract or a policy, but it may also be as simple as having a conversation with an employee about the expectations of their role.
“Most employment disputes can be easily avoided by a simple conversation.”
The right-to-disconnection provisions, which began to come into effect in August this year, are part of the Commonwealth Government’s Fair Work Legislation Amendment (Closing Loopholes) Act 2023.
The changes were introduced to help avoid unreasonable out-of-hours contact with employees due to issues such as the rise of always-on technology.
Mr Roberts said, as part of being proactive, employers should revisit their current employment contracts to ensure they adequately addressed the right-to-disconnect changes.
Many employment contracts included a provision that said that the employee agreed to work reasonable additional hours.
There were two areas where employers could amend their contracts to better protect their interests.
“Firstly, they can more clearly define the scope of reasonable additional hours,” Mr Roberts said.
“Secondly, they can clarify that an employee’s remuneration is intended to compensate them for any time spent monitoring, reading and responding to contact outside hours.
“I’m talking here about that grey area that isn’t ‘working’ in the traditional sense of attending work or your work from home set-up, but that nevertheless requires employees to be acting within the scope of their employment to read and respond to things.”
Mr Roberts said the right-to-disconnect provisions were an example of industrial relations and workplace health and safety becoming increasingly blurred.
Employers needed to be cognisant of the potential impact that their out-of-hours communications could have on their people, particularly when there was an expectation that those communications would be monitored or answered.
“Equally, it is important to remember that an employee’s right to disconnect is qualified,” Mr Roberts said.
“The right exists ‘unless the refusal is unreasonable’. Obviously, that has the potential to create plenty of scope for an argument. What is reasonable to one may not be reasonable to another, depending on various factors including industry practice, managerial responsibility and remuneration.”
Some employees “quite fairly” believed they were not paid enough to respond to communication outside of usual work time.
There were also many well-paid managers who were remunerated to be available in special circumstances regardless of the time or day.
“Employers need to work out where their employees sit on that spectrum,” Mr Roberts said.
“One of the best ways to answer that question is to simply ask yourself – if I needed to justify an expectation that an employee responded to out of hours contact, would my explanation come across as reasonable?”
Mr Roberts said, even though the Fair Work Commission was tasked with resolving disputes around the right-to-disconnect, he expected this function to be “relatively underutilised”.
More significant was that fact that the right to disconnect was a “workplace right”.
“If an employee believes that they have been subject to adverse action, including disciplinary action or termination of employment or even just been passed over for promotion because they exercised their right to disconnect, then they can make a ‘general protections’ claim to the Commission,” he said.
“They’re relatively cheap and easy to file and there’s a reverse onus – it’s for the employer to prove that they did not take the adverse action because the employee exercised a workplace right.
“It’s quite a powerful tool for an aggrieved employee and ultimately it will force employers to have to explain, and in many cases put on evidence, to explain why, in its view, an employee’s refusal to monitor, read or respond to contact was unreasonable.”
More details are on the McCullough Robertson website.
