AITKEN WHYTE LAWYERS BRISBANE
EMPLOYMENT LAWYERS AND SOLICITORS FOR BRISBANE AND SOUTH EAST QUEENSLAND
From 26 August 2024, a ‘right to disconnect’ clause has been added to all awards.
This change was introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (the Legislation).
This is currently in effect for all non-small business employers and their employees. This will come into effect for small business employers and their employees on 26 August 2025.
It is important for Australian businesses to ensure their practices and policies adhere to these new requirements, and for employees to have a proper understanding of their workplace rights.
All national system employees* now have an enforceable workplace right to disengage from work and refrain from engaging in work-related communications, such as emails and phone calls, outside of their normal working hours.
Unless the employee’s refusal to respond is unreasonable, then this right can be exercised without the employee fearing retaliation or other adverse action from the employer.
What makes a refusal reasonable or unreasonable depends on factors including, but not limited to:
· the reason for the contact or attempted contact;
· how the contact or attempted contact is made and the level of disruption the 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 is made or for working additional hours outside of the employee’s ordinary hours of work;
· the nature of the employee’s role and level of responsibility; and
· the employee’s personal circumstances, including family or caring responsibilities.
The Legislation does not mean that employers cannot contact their employees outside of work hours in reasonable circumstances. Rather, it simply means that in some circumstances employees will not be required to respond.
Navigating these changes while ensuring your business continues to run efficiently can be difficult. Aitken Whyte Lawyers can assist you with:
1. Implementing Policy
2. Preparing Employee Agreements
3. Assisting with Training Management
4. Monitoring and Reviewing Business Practices
5. General Advice
This change in the Legislation presents Australian businesses with a valuable opportunity to create and implement policy which promotes a healthy work life balance for their employees and complies with the Legislation.
By taking steps to ensure compliance now, business may avoid applications against them by employees and the Fair Work Ombudsman for any breaches or potential breaches of the right to disconnect.
As an example, if employees are required to be on call outside of their regular work hours, then proper practice would be for a written agreement to be in place. This protects both the employer and the employee, and ensures the employer’s business can continue running as required, without breaching the Legislation.
If your business requires employees to be contactable outside of workplace hours, we can assist you with preparing written agreements to encapsulate such requirements, including terms such as:
· when the employee may be expected to monitor, read or respond to contact from an employer;
· pay and conditions that may relate to out of hours contact;
· preferred out of hours contact channels; and
· who needs to be aware of out of hours contact arrangements.
Providing training for your management team is an important step for businesses to take to ensure compliance with the Legislation. Ensuring your management team is aware of the new right to disconnect laws and how this impacts any after-hours contact with employees is essential to maintaining a healthy workplace and avoiding potential breaches of the right to disconnect laws.
We can assist you with preparing outlines for training sessions.
We can assist with reviewing your business’ current policies and procedures. We can also assist with preparing and implementing new policies to ensure your business’ compliance with the Legislation.
Where an employee unreasonably refuses to communicate with you after hours, we can assist you with making an application to the Fair Work Commission.
We can also provide your business with advice on:
· how to deal with employees unreasonably refusing to communicate with you;
· when arrangements should be reviewed;
· what training is needed to help support managers, supervisors and employees;
· what internal policies, procedures and documents may need to be reviewed and updated; and
· how the arrangement may be recorded.
Taking steps to ensure compliance now may protect your business from applications from employees and/or the Fair Work Ombudsman later.
If action is taken against your business for an alleged breach of right to disconnect laws, we can assist you with defending this matter and taking steps to bring such disputes to a resolution as quickly and commercially as possible.
It is important for employees to properly understand their rights under the Legislation and in general.
If you are an employee wanting advice on your right to disconnect, we can assist. We can provide advice in relation to:
· whether your employer’s conduct is in breach of your right to disconnect;
· what constitutes a reasonable refusal;
· what to do if your employer punishes you for enforcing your rights;
· negotiating an agreement with your employer if you are required to work outside of your normal hours, including compensation for your time;
· drafting any agreements between you and your employer;
· filing a complaint about your employer with the Fair Work Commission.
Filing a complaint about an employer’s breach of your right to disconnect may result in the Fair Work Commission ordering your employer to stop contacting you outside of your normal work hours.
* In Queensland, national system employees are all employees except most state government and local government employees.
Brisbane
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
