Last month, the Australian Senate passed new legislation to give employees the “right to disconnect” when they are not working.

While the legislation won’t come into effect until six months after the Bill is given Royal Assent, or 18 months after for small businesses, now is the time to get your business prepared for this change.

What does the “right to disconnect” cover?

The new legislation provides employees with the enforceable right to refuse to monitor, read, or respond to work communications from their employer (or related third party) outside of work hours, unless their refusal is unreasonable.

However, employers can still contact their employees after hours (such as by sending an email). The legislation solely relates to the employee’s right not to read or respond to communications relating to their work unless their refusal is considered unreasonable.

The following factors are taken into account to determine whether a refusal is unreasonable:

• The reason for the contact or attempted contact
• How the contact or attempted contact is made and the level of disruption it causes the employee
• The extent to which the employee is compensated (including non-monetary compensation) to remain available to perform work during the period in which the contact or attempted contact is made or for working additional hours outside the employee’s ordinary work hours
• the nature of the employee’s role and the employee’s level of responsibility
• the employee’s personal circumstances (including family or caring responsibilities)

It will also be deemed reasonable for an employer to contact an employee and expect a response:

• In relation to rostering or upcoming shifts
• If they are paid to be on call
• Where their job description requires
• If there is an emergency
• Where there is a concern for workplace health and safety

The steps you need to take to be prepared

While the legislation won’t come into effect until later in the year – and 12 months after this for small businesses – it’s important that your business is prepared.

If you require employees to respond to out-of-hours communications, now is the time to review position descriptions to ensure this is documented. If position descriptions need to be updated, affected employees will also need to be consulted, and agree to their revised position description.

Company policies will also need to be reviewed to ensure work practices reflect the new legislation. We would also recommend that you provide practical guidelines and training to managers to ensure they understand the new legislation and know when it is appropriate to contact an employee outside of working hours.

Need some help?

With these changes coming into effect at the end of the year, it’s important to commence the process of reviewing company policies and position descriptions as soon as possible.

If you need some assistance with this please reach out to Nikki Jenkinson, Director and Lead HR Consultant – 0472 545 584 or submit an enquiry via our Contact page.