Helping you adjust – New guidance for employers on the right to disconnect

With the imminent enforcement of the Right to Disconnect laws coming into effect for non-small businesses on 26 August 2024, the Australian Public Service Commission (APSC) has published a new guidance paper on the Right to Disconnect for public sector employers, which seeks to provide “best practice advice and guiding principles” when weighing whether to contact employees out-of-hours.

Whilst the guidance paper is aimed at public sector employers, employers in the private sector can benefit from considering these guidelines in preparing for the new laws.

Key takeaways from the new guidance…

Identifying “risk profile”

The guidance lays out a seven-point checklist to assist employers in identifying the potential risks of the right to disconnect laws.

The checklist indicates the following effects for employers to consider:

1. Typical working hours and patterns for workers, both in the office and at home;
2. The prevalence of out-of-hours contact, or attempted contact;
3. Whether third parties regularly contact employees outside hours;
4. The communication methods commonly used;
5. The accuracy of role descriptions to ensure they reflect out-of-hours contact expectations;
6. Compensation arrangements for out-of-hours contact; and
7. Legislative requirements for specific employees to be contactable.

It is noted that employers should also assess interactions between the new laws and any existing right to disconnect entitlement in enterprise agreements.

Exercising judgment

The guidance reiterates that it is imperative for managers to “exercise judgement and weigh up all the relevant factors before contacting an employee outside of their working hours if they are expecting or eliciting a response”.

Updating workplace documents

The new guidance encourages employers to undertake a review of relevant employee documents that set out employees’ roles and responsibilities, in order to ascertain that they “accurately reflect” the “reasonable expectations” of them relating to out-of work contact hours. Suggested documents to review include job descriptions, performance agreements and candidate information packs.

If availability for working outside normal hours is considered an inherent requirement of the job or the employee is paid extra to be contactable out-of-hours, accurate portrayal in this instance is particularly important.

The APSC guidance also advises that employers should develop policies and procedures to clarify how disputes or complaints about the right to disconnect will be handled.

Training

The guidance calls for federal agencies to train HR professionals and managers on the relationship between the right to disconnect and the Fair Work’s general protections regime.

The APSC asserts that “all managers should understand that an employee or group of employees should not be subject to adverse action for exercising, or proposing to exercise, their right to disconnect.”

Providing thorough training is an important step in ensuring employers are able to effectively implement and navigate these changes as well as mitigate any potential legal risks.

More to come?

Keep an eye out for forthcoming FWC guidelines, which will sit alongside the current ASPC guidelines. As stated by the FWC’s president in a recent statement, the FWC guidelines won’t be made before August 26 as this will enable them to “be in a better position to make guidelines once it has dealt with at least some disputes”.

If you are wanting to get ahead of these changes, contact our team for assistance with updates to your workplace documents and training.

* This article was prepared with the assistance of Zara Arnold