The Right to Disconnect provisions under the Fair Work Act have officially come into effect for non-small businesses, bringing significant changes to how businesses handle out-of-hours communication. The same changes will come into effect for small businesses in 12 months time.

They are being introduced to address the growing concern over work-life balance and the increasing intrusion of work-related communications into personal time given the nature of our digital and instant communication methods. This legislative change aims to safeguard employees from being expected to engage in work outside their designated hours, thereby reducing stress and improving overall wellbeing. For businesses, these changes present an opportunity to foster a healthier work environment, enhance employee satisfaction, and prevent burnout. 

Here’s a guide on what you need to do to ensure compliance:

1. Understand the New Provisions

For Non-Small Businesses (15 or more employees):

• Effective Date: 26 August 2024.
• Key Points: Employees have the right to refuse work-related contact outside their designated working hours unless it’s unreasonable. Factors determining reasonableness include the nature of the contact, the employee’s role, personal circumstances, and any extra compensation.

For Small Businesses (fewer than 15 employees):

• Effective Date: 26 August 2025.
• Key Points: The provisions will apply from this date, so plan ahead to ensure you are ready.

2. Assess Your Organisation’s Risk Profile

Recommended Actions:

• Evaluate Current Practices: Examine your current out-of-hours communication practices, including the prevalence and methods used (e.g. emails, texts).
• Identify Impact: Assess how the Right to Disconnect will affect various roles, especially those involving frequent out-of-hours contact.
• Consider Compensation: Review whether additional pay or allowances are provided for out-of-hours availability and if adjustments are needed.

Considerations:

• Typical Working Hours: What are your employees’ standard working hours and flexible arrangements?
• Out-of-Hours Contact: How often does out-of-hours contact occur and what roles are most affected?
• Third-Party Contact: How do clients or customers reach your employees outside working hours?
• Communication Methods: What methods are used for out-of-hours communication?
• Role Documentation: Do role descriptions and responsibilities reflect out-of-hours expectations?
• Compensation Arrangements: Are employees compensated for being available outside normal hours?
• Legal Requirements: Are there roles legally required to be contactable after hours (e.g. emergency responders)?

3. Update Employment Documents

Recommended Actions:

• Revise Policies: Update to workplace policies to include clear guidelines on out-of-hours contact. Specify what constitutes reasonable and unreasonable contact.
• Modify Contracts: Adjust to employment contracts to reflect new expectations and compensation for out-of-hours availability.
• Develop Procedures: Implement a grievance resolution process that is easy for employees to access and understand.

Policy Components:

• Examples of Reasonable Contact: Provide practical examples, such as urgent issues or last-minute changes.
• Compensation Details: Clearly outline any additional remuneration or allowances.
• Resolution Process: Ensure the process for addressing disputes is straightforward and accessible.

4. Train Managers

Recommended Actions:

• Provide Training: Ensure managers understand the Right to Disconnect, its implications, and how to handle disputes.
• Emphasise Work-Life Balance: Include training on maintaining work-life balance and setting an example by limiting out-of-hours contact.

By establishing clear boundaries around work-related contact, both employers and employees can benefit from a more balanced approach to work and personal life, ultimately contributing to a more productive and positive workplace.

Common Questions

Q: Are there exceptions to the Right to Disconnect?

A: Yes, there are situations where out-of-hours contact may be considered reasonable. For example, if an employee is on call, is dealing with urgent work issues, or is in a role that legally requires them to be contactable, they may be required to respond outside of working hours.

Q: What if an employee chooses not to respond to an urgent request outside of hours? 

A: If the request is deemed unreasonable based on the employee’s role and the nature of the contact, the employee’s refusal is protected. However, if the contact is urgent and part of their role’s expectations, their refusal might be considered unreasonable. 

Q: How do flexible working arrangements impact the Right to Disconnect?

A: The Right to Disconnect and flexible working arrangements can coexist. Employees may work outside standard office hours, but this does not mean they are obligated to respond to work-related communications beyond their agreed-upon work times. Employers should ensure that flexible working agreements align with the Right to Disconnect.

Q: What if a dispute arises about the Right to Disconnect? 

A: Disputes should first be resolved internally. If unresolved, the Fair Work Commission can assist in resolving disputes, while the Fair Work Ombudsman will handle enforcement of compliance.

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Your next step

Reach out to your FCHR Consultant to discuss your needs to impliment any of the recommendations to ensure compliance for your buisness; either as needed now, or in prepartion for the small-business roll out in 2025.