Changes to employment laws now in effect: it’s important you know as ignorance of this new law is no excuse
What’s changed?
The Government has introduced a new law dubbed the ‘right to disconnect’ which effectively restricts the ability of employers to contact certain employees outside of ordinary working hours.
What this means is that an employee may refuse to monitor, read or respond to contact, or attempted contact, from:
- an employer outside of the employee’s working hours; and
- a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours,
unless the refusal is unreasonable.
For most employees the ‘right to disconnect’ legislation commenced on Monday, 26 August 2024.
Whether you are an employer or employee, you should be aware of how the changes may impact you.
It is anticipated that a lot of focus will be had on whether a refusal is ‘unreasonable’.
Background
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 amends the Fair Work Act 2009 (Cth) and was passed on 26 February 2024.
When do the changes start?
Right to disconnect laws came into effect on Monday August 26, 2024 for businesses with 15 or more employees.
The rules will not come into effect for small businesses until August 2025.
A small business is a business with fewer than 15 employees (this excludes casual employees unless they are engaged on a regular and systematic basis).
What employees are covered by this change?
These changes apply to all employees who are a ‘national system employee’.
In Queensland, this includes all employees except State public sector and local government employees.
When is a refusal unreasonable?
In determining if a refusal is unreasonable the following must be taken into account (although more factors may be taken into account):
- the reason for the contact or attempted contact;
- how the contact or attempted 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 of the employee’s ordinary hours of work;
- the nature of the employee’s role and the employee’s level of responsibility; and
- the employee’s personal circumstances (including family or caring responsibilities).
The refusal will always be unreasonable if the contact or attempted contact is required by law.
What steps should affected employers take?
To ensure compliance with the new legislation, employers may wish to consider undertaking measures such as:
- introducing new policies and procedures around the use of technology outside of working hours;
- undertaking additional training with managers to ensure they are up to date on the changes and liaising with employees to make any necessary operational changes;
- keeping employees updated on any policy changes to address the changes;
- developing an internal resolution system to resolve unreasonable refusal disputes at the workplace level;
- monitoring employee activities on work systems outside of hours;
- organising meetings with employees that tend to work outside of working hours to determine the reasons and consider if any underlying issues need to be addressed; and
- consider updating employment contracts to cover off on outside of working hours contact and reasonable additional hours.
What can happen if employers don’t comply?
If there is a dispute between an employer and an employee regarding whether the employee’s refusal was unreasonable, then the parties must first attempt to resolve the dispute internally.
If there is no resolution, then the employer or employee can apply to the Fair Work Commission (FWC) to make any order the FWC considers appropriate, for example:
- if the FWC considers the employee’s refusal is unreasonable, an order to prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact; or
- if the FWC considers the employee’s refusal is not unreasonable, an order to prevent the employer from taking disciplinary action against the employee.
Once an order is made, if it is violated then the person affected can apply to the courts in relation to the contravention and a penalty may be imposed on the person or entity in breach of up to $18,000.
If you have any queries about the implications of the ‘right to disconnect’ changes, please contact Mahoneys commercial Partner, Antony Harrison, or associate lawyer Nicola Whalley on (07) 3007 3777 or aharrison@mahoneys.com.au or nwhalley@mahoneys.com.au.
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