How right to disconnect laws will test workplace boundaries

The right to disconnect law that came into effect in August may allow employees to ignore communications after hours without fear of punishment, but they shouldn’t expect the same interpretation from entry-level worker to senior executive.

 Legal experts are watching how the law will be interpreted, if and when it is tested in court.

“Where we see this becoming an issue is where the employee refuses contact and that is a genuine operational issue for the employer,” said Sarah Smith, workplace senior associate at MinterEllison.

Smith said lawyers will also be watching for cases where an employer proposes to take disciplinary action against an employer who exercises the right to disconnect. The possibilities for interpretation of the legislation leave open a few interesting avenues, she told HRD.

“We might see some issues around considering one employee more favourably for a promotion if they choose not to exercise the right in comparison to another employee or group of employees who do choose to exercise the right,” Smith said.

The right for employees to disconnect is not an unfettered right to not be contacted outside work hours whatsoever, she said, but rather it provides for the employee to refuse to monitor or respond to communication from the employer but also third parties, such as clients and contractors.

“Unless that refusal is unreasonable, that calls for a case-by-case assessment, so the employer must take certain things into account,” said Smith, who will be speaking with her colleague Deanna McMaster, a partner at MinterEllison, at HRD’s Employment Law Masterclass in Brisbane on 13 November.

Requirements around monitoring right to disconnect

A clause relevant to the right to disconnect will be included after the hours-of-work clause in most awards, she said.

“Importantly, where relevant to that particular award, that clause does clarify that the right does not prevent contact where the employee is receiving an on-call or standby allowance, or where there is an emergency roster change, for example.”

When preparing contract clauses which include requirements around monitoring, reading or responding to contact for award covered employees, HR managers must be careful to consider whether an allowance will be triggered.

“You might want to avoid terms which require an employee to monitor or respond to contact,” Smith said. “For non-award covered employees, you could possibly be a bit more comfortable including a requirement for the employee to monitor and respond and to provide that the out-of-hours contact is part of their role, and that their remuneration compensates for this.”

Risk assessment on right to disconnect

Sectors or employers that operate across time zones will need to be careful, she said, and some organisations might consider conducting a risk assessment regarding the impact of afterhours contact and the controls that can be put in place to manage it.

“If your business needs people to answer or take calls or emails after work, it means actively considering what steps can be put in place to manage the safety risks associated with that,” Smith said.

To be prepared, HR managers must make sure managers understand when they should and shouldn’t be contacting staff.

“You can probably identify a list of roles that are more likely to be impacted by work demands outside of those usual working hours, and develop some role-specific guidance for those individuals or those roles,” she said.

Considering right to disconnect in work health and safety assessments will also go a long way, she said, “it’s about embedding those safety controls and viewing this issue through a safety lens as well.”

Employment Law Masterclass

At the Employment Law Masterclass in Brisbane on 13 November, McMaster and Smith will discuss the topic: “Setting workplace boundaries – the right to disconnect”. They 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.