Employees will soon have the legal right to disconnect from work communications outside of their working hours. In this article, Principal Sharlene Wellard from Meridian Lawyers explains how these new changes will impact employers, and the steps they can take to update their existing work practices and policies.
The new legal right to disconnect will come into effect in August 2024. For employees, this means they can refuse to respond to any work-related communication outside their working hours, unless the refusal is unreasonable.
Employers will be required to fully understand this new legal right and ensure they take time to review and update their internal procedures, policies and contracts.
Timing
The new right to disconnect comes into operation on 26 August 2024. However, for small business the legislation will apply one year later on 26 August 2025. This delay applies to businesses with 14 or less employees including employees of associated entities and casuals engaged on a regular and systematic basis.
What’s changing?
The changes to the Fair Work Act 2009 will give employees an enforceable right to disconnect from contact, or attempted contact, by employers and third parties that relates to their work and is outside their working hours. Modern Awards, including
the Pharmacy Industry Award, will be varied to include a term dealing with the right to disconnect.
There is no limitation on the method of contact and it will include answering phone calls, listening to voice messages, reading and responding to messages and comments in chat groups, text messages, and emails.
Employees will have the right to refuse to monitor, read or respond, to contact outside working hours, unless that refusal is unreasonable. The matters that will be taken into account when assessing ‘reasonableness’ include but are not limited to:
· The reason for the contact or attempted contact
· How the contact is made and the level of disruption the contact or attempted 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 or attempted contact is made or for working additional hours outside their ordinary hours of work
· The employee’s role and level of responsibility, and
· The employee’s personal circumstances, including family or caring responsibilities.
Disagreement about what is unreasonable
Disputes about what is ‘unreasonable’ that fail to be resolved by discussion at a workplace level can be dealt with by the Fair Work Commission (FWC). The FWC can make an order that unreasonable contact stop, that disciplinary action connected with the refusal that is not unreasonable stop, that an employee stops unreasonably refusing to be contacted outside working hours, or otherwise deal with the dispute.
The FWC, the Federal Circuit and Family Court, and Federal Court can also deal with general protections dispute claims made by employees when adverse action has been taken against them due to their right to disconnect.
What can employers do?
Following are practical steps employers can take to prepare for and manage the new right to disconnect.
- Limit contact to work hours (where possible)
As an employer, if you currently contact employees outside of work hours, consider the purpose of the contact and if it’s possible to make that contact during working hours instead.
- If communicating out of hours consider adding a note
Where contact is made out of hours, perhaps because as a busy employer, drafting communications is something that you do after the pharmacy has closed, consider including a note stating that a response from the employee outside of the their working hours is not required. Where possible, make time available during working hours to review the communication (for example, correspondence about policy changes, or change in working methods, or stock availability and deliveries).
- Review employment contracts
Consider reviewing employment contracts for relevant employees (particularly those with a high level of responsibility and in receipt of over Award pay). This is to ensure they contain provisions that require the employee not only to work reasonable additional hours but also that they may be contacted and are expected to respond out of their usual working hours, where it is required of their role.
- Define reasonable out of work contact in a policy
When introducing the new law the Government indicated that it did not expect that the new right to disconnect would prevent employers and employees from out-of-work contact on matters such as
rostering, covering absences, or in emergency situations.
To make that clear to employees, it would be prudent for employers to set out the type of reasonable out of work contact the employee is expected to receive and respond to in a workplace policy.
- Comply with the Award
Workplace policies and practices should be reviewed to ensure they are aligned with the right to disconnect terms in the Pharmacy Industry Award provisions. Draft terms are expected to be published by the FWC on 15 July 2024 and final terms published on 23 August 2024.
How we can help
Meridian Lawyers’ employment law team provides advice and representation on all aspects of employment law. We have detailed knowledge of the pharmacy industry having acted for many pharmacy employers throughout the country and are the principal legal advisor to the Pharmacy Guild of Australia.
To learn more visit: meridianlawyers.com.au/workplace-relations-safety
If you have any questions or require further information about employment law please contact, Principal Sharlene Wellard.
This article was first published in the July/August 2024 edition of Australasian Pharmacy magazine by the Pharmacy Guild of Australia
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