The Right to Disconnect laws came into effect on 26 August 2024.  The modern awards have been updated and the “new” right has been in the headlines.  With the new framing of the age old right for  employees to receive payment for time worked, questions now abound around the practical application in business and the steps needed to navigate communication, contact and disputes.  ACAPMAs Employment Team explore this hot topic in a practical Q & A.

Background

The ‘Right to Disconnect’ was a last-minute addition to the Closing the Loopholes changes late last year.  At the time the surprise addition caused considerable confusion, fed by some sensationalist claims being promoted in the media, and ACAPMA members reached out at the time asking what it would mean in practice for fuel transport and fuel retail businesses.

While the real implications will only become clear as cases are presented to the courts and Commission (i.e. setting case precedent for the future), the practical implications are getting clearer.

What is Right to Disconnect?

“The ‘Right to Disconnect’ changes have been both criticized and lauded, but many employment professionals are confused as to why the change was needed at all”, outlines ACAPMAs Elisha Radwanowski.

“The ‘Right to Disconnect’ can better be described as the ‘right to not get into trouble at work for not doing work tasks outside of work hours’”.

“Many of us are confused about the imperative for the changes because employees must already be paid for all time worked and are already protected from punitive action taken by employers in response to them raising genuine complaints about their entitlements and work conditions, such as being punished for refusing to do work tasks outside of work time. These two elements have been enshrined in the employment law for many years”, explains Elisha.

“Despite this potential duplication or legislation of an arguably existing ‘right’ the high level of attention on this area and exploration of what is and is not ‘reasonable contact’ by the community makes further consideration of this area an important thing for all operators to do now”.

“But the somewhat technical nature of the changes means that business owners need to be sure they understand the difference between ‘off-duty’, ‘on-call’ and ‘stand-by’ arrangements”, Elisha notes.

Off-duty, On-Call or Stand-by?

An employee is Off-Duty when they are not rostered for work.  It is during this time that employees have the Right to Disconnect.

In some industries Managers are considered On-Call as part of their position duties.  Being On-Call means that the employee is expected to be available to take calls or respond to texts/emails in certain circumstances, such as addressing an employee not coming into work or an incident occurring at work.  Managers are typically remunerated within their salary for being On-Call.

“What is important for operators to understand is that a manager is usually remunerated for being On-Call and that means answering the phone or arranging to fill a staff gap, but if the manager is actually ‘Called In’ to work to actually work a shift because an employee did not show up, or the incident required site attendance, in these circumstances the manager would be required to be paid for the additional work”, explains Elisha.

Even On-Call workers have the right to remove themselves from being On-Call when on leave.

In some circumstances workers will be Standing-By to work – which means that the employee is holding themselves in readiness to work.  An employee that is Standing-By is required to be in a particular location, available and ready to work.

“In the fuel industry it is common for fuel drivers working in aviation to do a Stand-By shift, where they are not actually working, but they have to hold themselves in readiness to work.  That means they can not take alcohol, they can not be too far from the workplace and they need to be ready to commence work quickly.  These employees are typically paid a Standing-By rate for the time they are not working”, Elisha adds.

Management staff and self directed hours?

ACAPMA has received questions particularly relating to senior staff, such as managers and how the work they do while out of the office fits into the new paradigm.  The head of the employment regulator faced similar questions when the law first passed at a Senate Estimates Meeting and highlighted that she considers the Right to Disconnect changes as an opportunity to open discussion with staff about what is part of their role and remuneration and what is not, though she acknowledges that with senior staff this is difficult.

Department of Employment and Workplace Relations Secretary Natalie James told the hearing that the “new rules” were about interactions when employees “are not at work”.

“They set principles around communication out of work time, when people aren’t expected to be working and aren’t being paid to be working. In my department we work hard to try and get this balance right, particularly for our senior people who are remunerated in a way that reflects an expectation that they do work outside of their ordinary hours. But they are still entitled to balance and their well-being is paramount. One of our biggest challenges is setting reasonable boundaries around this”, Ms James explained

James said the new Right to Disconnect laws would be a prompt for everyone to have conversations to “ensure that we’re able to get the job done and also respect boundaries and well-being so that we can all make plans for life as well as work”.

When do the changes apply?

The specific Right to Disconnect changes come into effect for business (other than small businesses) from 26 August 2024.  Small businesses will be subject to the changes from 26 August 2025.

Right To Disconnect in Awards?

All Awards have had a Right To Disconnect clause added to them.

The award term refers to the legislative right to disconnect and provides that an employer “must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act”. The clause also seeks to clarify the interaction between the new right and a number of specific modern award terms, including overtime provisions, on-call arrangements, maximum daily hours and changes to rosters.

Right To Disconnect in EBAs?

All existing Enterprise Agreements will, from 26 August 2024, be read as if they include a Right to Disconnect term, and new EBAs will be required to add a model Right to Disconnect term.

Right to Disconnect in Practice

“The practical application and determination of what is reasonable to contact an employee about outside of hours, and what is reasonable to expect a response to is going to be clarified and sharpened by case law over time, for now though a common sense approach is expected when it comes to what is ‘reasonable’, explains Elisha.

“Employers can contact employees at any time outside of work hours for any reason.  What employers can not do is punish an employee for not responding to contact outside of work hours”

 

  • Can I contact an employee out of work hours if I am offering a shift? 
    • Yes, this is a reasonable contact and it is reasonable to expect a response. What would be unreasonable would be punishing the employee (formal warnings, termination) for not responding.  The employee is not at work and so work can not require a response, but at the same time it is not unreasonable for the business to reach out to the employee for this reason.

 

  • Can I contact an employee out of work hours if I am not going to be able to open the workplace due to an emergency/disaster?
    • Yes, this is a reasonable contact and it is reasonable to expect a response. What would be unreasonable would be punishing the employee (formal warnings, termination) for not responding.  The employee is not at work and so work can not require a response, but at the same time it is not unreasonable for the business to reach out to the employee for this reason.

 

  • Can I contact an employee out of work hours if I am changing a travel plan or work plan?
    • Yes, this is a reasonable contact and it is reasonable to expect a response.  What would be unreasonable would be punishing the employee (formal warnings, termination) for not responding.  The employee is not at work and so work can not require a response, but at the same time it is not unreasonable for the business to reach out to the employee for this reason.

 

  • Can I contact an employee out of work hours if there has been a major incident onsite and the employee contacted is listed as the emergency contact?
    • Yes, this is reasonable contact and it is reasonable to expect a response. If an employee is being listed as one of the emergency contacts, or is on the contact escalation list for incidents or onsite issues it is expected that there is a portion of the modelling for the salary for the employee that includes provision for this contact (on-call). In these circumstances it would be reasonable to have a conversation if the employee was on call for an incident and did not respond within a reasonable timeframe.  However, the employee must have the right to remove themselves from on-call duties while on leave or when unwell. Ideally each contact list should have multiple contacts for escalation to ensure issues are addressed in a timely fashion.

 

  • Can I contact an employee out of work hours to discuss setting a performance management meeting?
    • Maybe.  This kind of contact could be reasonable, particularly if the employee is a night worker and the management structure is day based, but the contact, and any response times set, should be respectful of the employees usual work/rest schedule.

 

  • What happens if there is dispute over an employee not responding to out of hours contact?
    • Disputes are to be addressed at the workplace level first, but if they can not be resolved they can then be escalated to the Fair Work Commission for arbitration.  As the Right to Disconnect has been added to the General Protections section of the Fair Work Act if a business is found to have adversely effected an employees employment due to them exercising the right to disconnect the business can be fined up to $82,500, individuals can be fined up to $16,500 in addition to the remedy of compensation being available to the employee directly.

Messaging to Employees and Managers?

Managers and key decision makers need to understand the Right to Disconnect operation in practice so that they can support internal compliance and ensure in the business actions and so that they know how to respond in the event of an employee raising a concern about their right.

This training should be backed by written communications in wither Memo or Policy.  In addition contract templates should be reviewed for on-call, stand-by and Right to Disconnect operations.

Guidance and Resources

ACAPMAs industry specific Right to Disconnect Guide will be circulated to all members on 2/9/2024.

The Fair Work Commission has released a Right to Disconnect Factsheet – https://www.fwc.gov.au/documents/resources/right-to-disconnect-fact-sheet.pdf

Here to Help

Through the year ACAPMA Employment Professionals are available to assist members via employment@acapma.com.au.

This article is general in nature and covers things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by contacting one of ACAPMA Employment Professionals its free for members. ACAPMA membership is affordable at only $860 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts.

Visit: https://acapma.com.au/membership/   to apply for ACAPMA membership.

ACAPMA

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