There has been much coverage and discussion about the newly introduced right to disconnect, particularly the right of employees to refuse contact from employers provided such refusal is not unreasonable.
One of the more challenging aspects of the right to disconnect, which has been overlooked in much of the analysis and commentary, is that it applies not just to contact from employers but extends to contact from third parties.
Relevantly, section 333M(2) of the Fair Work Act 2009 (Cth) (Act) provides:
“An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.” (Emphasis added)
A third party includes a customer or client of the employer’s business. Contact from a customer or client to an employee of the business would, in almost all circumstances, relate to the work of the employee.
The implementation of the right could have a significant impact on occupations where customers or clients directly contact employees out of work hours. It gives rise to the prospect of employees either not responding to such contact from customers or clients, or simply informing the customer or client that they are refusing to attend to their issue or query at that time. For many businesses, which commonly adopt a ‘Customer is King’ philosophy, such a response would be anathema to their client service ethos. The right could conceivably affect a range of industries such as professional services, real estate, information technology, finance and media.
As such, employers need to consider measures to effectively balance the need to serve customers and clients with the right to disconnect.
Some practical steps for employers to consider:
- Discuss the issue with employees. Ensure employees know the scope of the right (lest they hold the mistaken but commonly held belief it is an absolute prohibition on out of hours contact applying to all employees) and gain an understanding of the position of individual employees on out of hours contact from customers or clients. This can prevent both the business and its customers or clients being blindsided by a non-response or a refusal. Of course, in discussing the right to disconnect with staff employers need to be careful not to misrepresent the scope of the right or threaten any adverse action if an employee proposes to exercise the right. It would be prudent for any messages from employers to be carefully scripted to ensure accurate information is given to employees. Such a discussion can also be an opportunity for employers to set expectations with employees, particularly if the view of the employer is that a refusal of certain contact would, in the case of that employee, be unreasonable under the Act.
- Adopt communication protocols. Where appropriate, customers or clients who seek to make out of hours contact with an employee where it would not be unreasonable for the employee to refuse the contact should be sent a specifically crafted message (which may need to be an automated text message or part of a voice mail message) that the employee they are seeking to contact will not be in a position to assist them until working hours (which should be specified). Such a message should ideally also form part of the email sign-off for employees who elect to exercise the right. It would assist in minimising the prospect of any brusque or inappropriately rude response from an employee to a customer or client. It will be easier to mandate these measures on a device provided by the employer rather than a personal device the employee uses pursuant to a Bring Your Own Device (BYOD) policy. Of course, if an employer is seeking to argue that a refusal of out of hours contact is unreasonable, but has a BYOD policy, be ready for the argument from an employee in the event of a dispute that they’re apparently important enough to need to respond to customers and clients after hours on behalf of the employer but not important enough to be provided with a work device to do it. Some employers may not like this, but I suspect such an argument would likely find favour with the Fair Work Commission (FWC).
- Job Descriptions and Employment Contracts. Some of the factors the FWC must consider under the Act in determining whether a refusal of contact by an employee is unreasonable relevantly include: (i) the nature of the employee’s role and level of responsibility, and (ii) whether the employee is compensated to perform work during the period in which contact or attempted contact is made or for working additional hours outside the employee’s ordinary hours of work. If there is an expectation that an employee will respond and deal with customers and clients outside working hours, then these expectations should ideally be made clear in both the employment contract and position description for the role. The remuneration payable to the employee should also be expressed to be partly in consideration for being available to respond and deal with such contact. As stated above, consider whether the application of BYOD policies might run counter to an argument the employer may want to run that a refusal from certain employees is unreasonable.
- Set expectations with customers and clients. If customers and clients are used to dealing with certain employees who are going to (not unreasonably) refuse contact, then the business may want to have a discussion with the customer or client either adjusting their after-hours service expectations or asking them to adopt alterative arrangements for contact with the business at those times.
One consolation for employers is that unlike stop-bullying orders, which can be obtained against third parties such as customers or clients, right to disconnect disputes are between the employer and employee and the orders the FWC can make pursuant to section 333P of the Act are confined to preventing either the employee or employer taking certain actions inconsistent with the scope of the right. Of course, such orders could create a difficult situation that may require diplomacy on the part of the employer to manage with the customer or client if they are the third party whose contact has precipitated the dispute and FWC orders.
