Starting 26 August 2024, employees covered by the Fair Work Act 2009 (Cth) (Act) (except small businesses with fewer than 15 employees) will have the right to disconnect from work-related communications outside their working hours. This development is part of the Australian Government's latest tranche of industrial relations reforms which have been introduced by the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth). The right to disconnect laws will apply to small business employers and employees from 26 August 2025.
Employers across Australia have been considering how to prepare their workplaces and their workforces in dealing with this new right.
To assist employers in the Australian Public Service (APS), the Australian Public Service Commission (APSC) has recently published 'Guidance on the Right to Disconnect in the Public Sector' (Guidance). The Guidance provides APS agencies and managers with best practice advice and guiding principles on the implementation of the new right to disconnect provisions in the Act.
Our article sets out the key suggestions contained in the Guidance, and our practical tips to ensure APS agencies are prepared for this new right coming into effect on 26 August. We also recommend reading our previous articles to bring you up to speed on what this right means for your agency.
- Tips for employers ahead of the commencement of the right to disconnect
- Does the right to disconnect fit the bill?
When will refusal be unreasonable in the APS?
Section 333M(3) of the Act will set out factors that employers (and ultimately, the Fair Work Commission) will need to consider in determining whether an employee's refusal to respond to out of hours contact is unreasonable.
The APSC has set out its expectations on these factors in the Guidance, which we summarise below. There is no 'one size fits all' approach to these factors, and managers are encouraged to exercise judgment and weigh up all relevant factors before contacting an employee outside of their working hours if they are expecting or eliciting a response.
The reason for the contact
The APSC has indicated that out of hours contact may be appropriate in an emergency or if a matter is time sensitive. For example, an APS agency may be justified in contacting an employee if a crisis was unfolding and the employee's role requires them to respond immediately or urgent action is required to meet legislated timeframes.
Contact may also be deemed necessary or urgent if it relates to workforce needs or obligations, such as notification of roster changes for the next day.
How contact will be made
The APSC has indicated that the forum in which contact is made will vary depending on the circumstances. The APSC recommends that managers ask their employees if they have a preference that contact be made in a certain way. For example, some employees may prefer to be contacted by phone or text message rather than email, so that the employee does not need to monitor their email inbox after hours.
The employee's role and level of responsibility
The APSC has indicated that as a general principle, managers should avoid contacting junior employees outside of their ordinary hours unless it is an emergency or contact is a recognised part of the employee’s role and responsibilities. For example, a junior employee responsible for IT infrastructure and support may need to be contactable outside normal working hours.
The APSC notes that despite the existing expectation that EL1, EL2 and SES employees are required to be contactable and work reasonable additional hours, the right to disconnect under the Act applies to all employees and as a result, managers should make efforts to minimise out of hours contact for all employees.
Whether the employee receives additional remuneration to be contactable
The APSC has indicated that as a general principle, a manager may contact an employee outside of their ordinary hours and expect a response if the employee receives additional monetary remuneration to compensate them for being contactable, e.g. via an Individual Flexibility Agreement or the payment of an on-call or restriction allowance.
APS agencies are encouraged to update their existing policies to clarify the extent to which employees are being compensated for out of hours contact, and to consider the availability of other mechanisms to compensate employees for additional hours worked, e.g. flex credits, overtime, time off in lieu, or other flexible working arrangements.
The employee's personal circumstances
The APSC has indicated that managers should take an employee's personal circumstances (e.g. family or caring responsibilities, medical appointments, or travel and commute times) into account when considering out of hours contact.
The APSC has also encouraged managers to consider how they factor in an employee's personal circumstances in determining whether to make out of hours contact with them. For example, does an employee's health and wellbeing or their specific work responsibilities increase the importance of being able to disconnect?
Actions APS managers can take now
|
Communicate with employees |
Managers should set clear expectations to their employees to ensure the right to disconnect is being implemented correctly. As a starting point, managers and their employees should be aware of the team's normal business hours, and any shift or flexible arrangements that may vary from normal business hours.
When the normal hours of work are established, managers and employees should talk to each other about circumstances where employees may need to monitor, read or respond to contact outside their normal hours. These conversations should occur regularly, as the relevant circumstances may change.
Teams should consider which methods they will use to contact each other after hours to minimise disruption to individual employees. |
|
Identify your right to disconnect 'risk profile' |
APS agencies should review the operational context and type of work it conducts, with the goal of developing agency-specific guidance for employees within that agency.
Factors to consider when assessing the agency's risk profile may include the prevalence of out of hours contact, and whether there are arrangements in place to compensate employees for being available after hours. |
|
Train HR professionals and managers |
APS agencies should consider how employees will be informed about the right to disconnect and any legal risks associated with unreasonable out of hours contact. For example, information on the right to disconnect could be added to existing training and induction materials for HR professionals and managers. |
|
Update position descriptions |
Position descriptions, candidate information packs and other materials setting out an employee's role should clarify whether there is a reasonable expectation that they may be contacted out of hours.
Agencies should also consider implementing mechanisms to regularly review written materials and ensure they are up to date. |
Next steps
The Guidance should be read in conjunction with the guidelines that will soon be provided by the Fair Work Commission on the right to disconnect.
If you would like more information on responding to the right to disconnect, please contact a member of our experienced Workplace Relations & Safety team.
All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted. Lander & Rogers is furthermore committed to providing legal advice and content that is factual, true, practical and understandable. Learn more about our editorial policy.
