MinterEllison partner to offer insights for HR at upcoming Employment Law Masterclass
The right to disconnect law that took effect in August may allow employees to refuse to monitor or respond to work-related communications outside ordinary hours, but people should not expect a blanket application.
The concept of reasonableness is crucial, considering factors like remuneration, job nature, seniority and personal circumstances.
“[The right to disconnect] is a recognition that people need downtime; that they need to recharge and be protected from burnout, undue stress and psychosocial hazards,” MinterEllison partner David Woodman told HRD.
“Employers need to be conscious about the way that they seek to interact with employees outside of ordinary hours, but I think it is unlikely to result in a seismic shift.”
Requirements around monitoring right to disconnect
The right to disconnect extends so far as it becomes unreasonable, he said. “It’s the reasonableness – or unreasonableness – that is really at the heart of it.”
Guidance as to how the right to disconnect will intersect with the requirement to work reasonable additional hours will be determined by the Fair Work Commission when it inevitably decides on cases, said Woodman, who will be speaking at HRD’s Employment Law Masterclass in Melbourne on 21 November.
“What’s reasonable is going to take into account things like the level of remuneration that people get paid, the nature of the duties that they perform, the seniority of their position, their personal circumstances, the extent to which they’ve got family responsibility – all those types of things,” he said. “It’s always going to be a case-by-case assessment as to whether a refusal is unreasonable.”
HR steps ahead of right to disconnect
As they wait to see how the law is interpreted, Woodman said HR teams should be thinking about three things:
First, consider the current working patterns across their businesses and identify whether there are any parts of the business that rely on employees being available and responding to requests outside of their ordinary hours. Where that is the case, assess whether the existing arrangements are likely to be considered reasonable for relevant purposes.
Second, start setting clear outlines as to when employees are expected to be available and to respond to requests from their employer and third parties, which might be the contract of employment, employment policies or in position descriptions.
“They needn’t be major amendments, but just tweaking the relevant provisions to expressly acknowledge where there is likely to be a requirement to respond to requests outside of ordinary hours,” he said.
Finally, make sure managers are well trained and understand the way in which the right to disconnect operates in practice, so they can assess whether an employee’s failures or refusal to respond is reasonable or unreasonable in the relevant circumstances, and what steps they are able to take in response to that.
What is reasonable and unreasonable
The right to disconnect doesn’t prohibit an employer from contacting or attempting to contact employees out of hours. Rather, it is about an employee’s capacity to not monitor emails or phone calls or to refuse to respond to them.
“The flip side, from an HR manager’s perspective, is that employees need to be conscious that they can’t just refuse any requests outside working hours, and the more senior a position is, and the more someone’s paid, the more likely it is to be seen as unreasonable to refuse out of hours requests,” Woodman said.
Although the right to disconnect doesn’t stop employers from making contact out of hours, if that contact itself becomes unreasonable then it could stray into either bullying or other safety concerns, he said.
Employment Law Masterclass
At the Employment Law Masterclass in Melbourne on 21 November, Woodman will discuss the topic: “Setting workplace boundaries – the right to disconnect”. He will talk about how the right to disconnect has been introduced to establish work-life boundaries for employees and how the reforms will increase employers’ obligations to provide healthy and safe workplaces.
The session will look at:
- when an employee’s refusal to be contacted is considered unreasonable
- how to manage a dispute regarding an employee’s right to disconnect
- how to apply the right to disconnect clauses in enterprise agreements and modern awards
- how the right to disconnect law can be applied in workers’ compensation claims.
Want to learn more about upcoming changes to employment law and legislation? Register for HRD’s Employment Law Masterclass here.
