The right to disconnect has been in the media a lot. But if we look behind the headlines, what impact is it actually going to have?
The new laws give employees a limited right to ignore work-related contact outside of working hours. This right is limited by what is reasonable. It does not:
- outlaw reasonable out-of-hours contact; or
- give employees rights to unreasonably ignore work-related communications.
Given the Fair Work Act 2009 (Cth) has always prohibited unreasonable additional work outside of ordinary hours, what – if anything – does the new right to disconnect actually add?
What can employers expect?
There are some new issues to navigate here:
- Some employees may now wrongly choose to ignore contact that should have been actioned.
- Employee grievances will include alleged breaches of this new right if they have been contacted out of hours. Disputes and general protections claims will no doubt follow.
- The circumstances in which out-of-hours contact is reasonable, and when there is a right to ignore it, will be hotly debated in all of these scenarios. Large penalties can apply for getting it wrong.
- If employees ignore out-of-hours contact, any disciplinary response needs to be managed carefully to minimise risks.
The new law does not require every business to suddenly change existing arrangements or introduce new policies. If out-of-hours contact is already managed reasonably, then the right to disconnect might not have a big impact at all.
That said there could be some "hidden" consequences – for example:
- While the right to disconnect doesn't specifically require more payments to be made for out of hours contact or work, unions and employees may use this to claim more benefits.
- Businesses scared of getting this wrong might:
- try to standardise working hours to minimise out-of-hours contact, which could pose challenges for flexible working; or
- err on the side of avoiding contact even if that means going short staffed instead of offering workers a last-minute shift.
Will this change how Australian businesses and workers operate?
Rights to disconnect have existed in some overseas countries for some time. The experience in those jurisdictions has indicated a modest impact, not a wholesale revolution.
Given that Australia has had very few legal cases involving disputes about unreasonable work outside ordinary hours, we will need to wait to see if this new disconnect right has much of an impact after the news cycle has moved on.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
