One of the most talked about and debated workplace reforms of recent times is the ‘right to disconnect’. This right was one of the workplace relations reforms included in the Closing Loopholes Bill No. 2 (Bill), passed by the federal parliament last week.
Laws conferring a right to disconnect have been implemented in, among other places, France and Italy. It is also common for companies in Germany to have policies implementing such a right for employees. It is a European-style labour reform, ensuring the demands of work do not unreasonably encroach on the lifestyle or dignity of employees. A quintessential example of this is the French law that prohibits employees from eating lunch at their desk while at work, a common practice in countries such as Australia and the United States.
The Right to Disconnect in Australia
The right to disconnect actually consists of two separate employee rights, set out in the Bill as follows:
- “An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.”
- “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.”
In determining whether a refusal by an employee is unreasonable, the following matters must be taken into account:
- 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;
- the employee’s personal circumstances (including family or caring responsibilities).
This is not an exhaustive list. It does not limit the matters that may be taken into account in determining whether a refusal by the employee is unreasonable.
The two separate rights that comprise the right to disconnect are workplace rights for the purpose of the general protections provisions of the Fair Work Act 2009 (Cth) (Act). That means it will be prohibited for an employer to take adverse action (such as termination of employment or demotion) against an employee because they exercise or propose to exercise either of the rights.
Disputes and Orders
If the employee has refused to monitor, read or respond to contact or attempted contact and either:
- the employer reasonably believes that the refusal is unreasonable; or
- the employer has asserted that the refusal is unreasonable and the employee reasonably believes the refusal is not unreasonable;
then the dispute resolution process in relation to the right to disconnect can be enlivened.
In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level by discussions between the parties.
If those discussions do not resolve the matter then an application can be made for the Fair Work Commission (FWC) to deal with the matter, including making orders for an employee to stop refusing contact or for employers to stop taking certain actions.
The FWC may make an order it considers appropriate (other than a pecuniary penalty) in either of the following circumstances:
- an employee has unreasonably refused to monitor, read or respond to contact or attempted contact and there is a risk the employee will continue to do so;
- an employee’s refusal to monitor, read or respond to contact or attempted contact is not unreasonable and there is a risk that the employer will:
- take disciplinary or other action against the employee because of the employer’s belief that the refusal is unreasonable; or
- continue to require the employee to monitor, read or respond to contact or attempted contact despite the employee’s refusal to do so.
The FWC may also dismiss an application for orders if the application is frivolous or vexatious. In circumstances where employers contend an application falls in that category they can seek the application be dealt with expeditiously and efficiently and for the decision on the application to be communicated to the parties in a timely way.
Some Observations
The right to disconnect has attracted substantial interest and commentary, much of it critical of the reform. Below are some observations on the way in which it is likely to apply in practice and some matters for employers and employees alike to consider:
- A refusal by an employee to read, monitor or respond to contact or attempted contact must be reasonable. This has been overlooked in much of the commentary. It is not an absolute prohibition on contact from an employer to an employee outside working hours. For instance, contact to inform an employee of a changed shift or work location is highly unlikely to fall within the scope of the provision.
- That said, the practical implementation of the right to disconnect is likely going to pose substantial challenges. Different perspectives or views between employees and employers as to what constitutes an unreasonable refusal of contact will undoubtedly create tensions in some workplaces. Employers need to remember that while the process might sometimes be frustrating, adverse action cannot be taken against an employee for exercising or purporting to exercise the right to disconnect, even if the employee might ultimately be wrong as to whether their refusal to respond to out of hours contact is unreasonable.
- The right to disconnect is enlivened when there is contact outside of the employee’s ‘working hours’. For some occupations, particularly professionals and senior executives, there might be a live question as to what are the ‘working hours’ for the purpose of the right. There isn’t always a clear delineation between working and non-working hours, particularly in senior executive and professional roles. Paradoxically, it is this very lack of a clear division between working and non-working time the right to disconnect is seeking to address.
- One of the rights that comprise the right to disconnect addresses contact or attempted contact by a third party related to the work of the employee. This might have a significant impact on occupations where customers or clients directly contact employees out of work hours. Employers may be mortified by the prospect of employees either not responding to contact from clients or customers, or bluntly refusing to attend to their issue, out of work hours. Employers need to consider strategies for effectively balancing the need to serve clients with the right to disconnect their staff will have. Communication protocols will be important. Email sign-offs that set parameters and expectations for response to out-of-hours contact will likely become more common.
- A factor in determining whether a refusal is unreasonable is the nature of the employee’s role and level of responsibility. For senior executives and professionals this factor may have significance, rendering many refusals unreasonable. That said, it is unlikely to mean that the customer or client is always going to be right and that it is, ipso facto, unreasonable to refuse contact from a customer or client. The mentality of always acceding to demands of clients or customers at any time, even if objectively unreasonable, may need to be revisited.
- One way employers may seek to address this issue for client-facing roles is to note in the employment contract that client service is a fundamental aspect of the position, with the employee acknowledging that, as part of their role, dealing with customers outside working hours is required. This would not, of course, override the legislated right to disconnect, but might assist in an argument on behalf of an employer that client contact outside working hours is part of the employee’s role.
- Much has been made of the role of the FWC in relation to the right to disconnect. The framework for the making of orders by the FWC is similar to that previously adopted for orders to stop bullying and sexual harassment. If the exercise of these powers by the FWC is any guide, applications and orders are likely to be relatively rare. Much of the commentary on this aspect of the right to disconnect overlooks the requirement for the employer and employee to try and resolve any dispute by discussions at the workplace level before taking the dispute to the FWC.
Some minor tweaks to the right to disconnect have been foreshadowed, including removal of the prospect of imprisonment for a breach of the right by an employer. Once finalised and implemented the right to disconnect will pose challenges for workplaces, but these challenges should be approached sensibly from an informed perspective.
