Right To Disconnect: What The New Law Means For Your Business

The new Right to Disconnect has garnered a lot of attention in the media in the recent months, but what implications will it really have for small business owners?

The Federal Government recently passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, which seeks to implement a number of employment reforms, including the Right to Disconnect. This will commence on the 26^th of August 2024 for most employers, and on the 26^th of August 2025 for small businesses.

The Right to Disconnect is intended to improve the work-life balance of Australian employees by limiting the excessive intrusion of work into personal time.

What is the Right to Disconnect?

The Right to Disconnect will allow employees to refuse to monitor, read or respond to their employers or clients outside of working hours unless the refusal is unreasonable.

What is considered unreasonable will depend on a number of factors, including:

• The reason for contact and how contact is made;
• The level of disruption that the employee experienced as a result of the contact;
• Whether the employee is adequately compensated to be available after working hours or for working additional hours outside their ordinary hours of employment;
• The nature of the employee’s role and their level of responsibility; and
• Any relevant personal circumstances, such as family and caring responsibilities.

As such, it’s unlikely that texting your employee to ask if they are available for a shift tomorrow is going to get your business in hot water. The scope of these provisions appears to be designed to curtail excessive or unreasonable extra hours, that are not adequately compensated.

It is also important to note that Right to Disconnect disputes must be dealt between the employer and employee in the first instance, and can only be escalated to the Fair Work Commission if the matter cannot be resolved. The Fair Work Commission will then either make an order for the employee to stop refusing contact, or for the employer to stop contacting the employee or to stop taking disciplinary action against the employee for refusing contact.

Preparing for these New Changes

If you often contact employees outside of their regular working hours, prepare these strategies ahead of time so you are ready when the changes come into effect.

Address Employees’ Position Descriptions

Position descriptions are often outdated or missing, and yet will be a key piece of evidence in whether your contact can be considered reasonable. Your business should undertake an audit of existing position descriptions, and update where necessary to include provisions for contact outside of work, providing it is a reasonable expectation for that position.

For example, if your employee’s position description outlines that there is a degree of out of hours contact, and they are the contact person and are paid accordingly, it may mean their refusal of contact could be considered unreasonable.

Manage Your Expectations

These changes may require a shake-up of your business’ operations to ensure compliance. You might have to review your communication expectations with clients and employees, and implement compensation strategies for work done outside of normal hours in case of emergencies.

Update Your Policies and Procedures

You should prepare a workplace policy on contacting employees outside of working hours and ensure this is communicated across the team. Providing information to employees and supervisors on this new right can ensure your team is aware of the changes and don’t treat employees adversely if they reasonably refuse after-hours contact.

The Right to Disconnect has been a controversial topic amongst some business owners, but it is important to note that this new legislation is unlikely to have a significant impact on many employers. However, you will need to have strategies in place by August 2025 to ensure your contact is reasonable and employees are adequately compensated for after-hours work.