As you may be aware, recent changes to the Fair Work Act legislation has introduced the right for employees to disconnect which commenced on 26 August 2024, and will come into effect from August 2025 for small businesses.
To help understand what these changes mean for business owners, we have asked Kate and the team at Zest People to provide some insight and recommendations on what you can do on a practical level.
What are the ‘right to disconnect’ changes?
Employees now have a legal right to say no to contact outside of usual working hours, unless refusing a request or contact is deemed unreasonable. It applies not only to contact from Employers but also third parties.
The legislation does not prohibit (you or anyone else) from contacting employees outside of their working hours. However, where such contact relates to work, is outside of their working hours and is unreasonable an employee may have the right not to monitor, read or respond to such communication.
What is considered reasonable contact?
Examples of reasonable contact include a change in shift time, emergency shift call up or a recall to work.
Factors that will determine reasonableness include:
- What is the reason for contact and is it reasonable
- How contact the contact was delivered e.g. via work email, work phone
- How much disruption did it cause the employee
- The seniority of the employee and their remuneration or compensation
- The scope of the employee’s role and responsibilities and if the contact is in keeping with this
- If the employee will receive subsequent compensation following contact e.g. on call or call out allowance
- If the employee has carer responsibilities or there is a need to consider overlaying flexible work arrangements in place i.e. if an employer contacts an employee on a designated non work day as part of an established flexible work agreement, this would be considered as unreasonable
As an employer what immediate action do you need to take?
- Talk to your team: use this as an opportunity to proactively engage with your workforce / teams to openly discuss what would be considered intrusive contact, what are their needs and are happy to receive contact outside of usual work hours. Fostering a culture of open, honest communication will more likely result in employees coming to you first before taking action to submit a formal right to disconnect request. This will also support your business in managing potential psychosocial risks that come about from a lack of boundaries between work and life.
- Review current salary levels and rostered hours: consider a review of current salary brackets and if minimum salaries cover reasonable additional hours, referencing your applicable Industrial Instrument e.g. Modern Award and National Employment Standards for minimum hours and rates of pay definitions. Employers are entitled to request reasonable additional hours worked outside of minimum hours stated, in particular for employees paid in excess of Award minimums.
- Train leaders on the Right to Disconnect and disciplinary procedures: Employees submitting a Right to Disconnect request are covered for adverse action claims. Which means that any employee who reasonably refuses contact outside of usual working hours cannot be denied a promotion, cannot be dismissed, cannot be issued with a warning or be subject to any other adverse action for their refusal of contact outside of usual work hours, unless the refusal is unreasonable.
Changes like this can place additional pressure on businesses and as you navigate how to respond to employee questions and requests, we encourage you to view this as an opportunity to engage with your workforce in a two-way dialogue and utilise feedback to continual to improve your workplace culture.
If you have concerns around the legislative changes or your Employment Contacts, Zest have adjusted our contracts, code of conducts and guideline templates to ensure these appropriately cover ‘Closing the Loopholes’ Act changes and specifically the Right to Disconnect.
For further support please each out to Kate and the team at Zest People: https://zestpeople.com.au/contact/
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