Those spying reference in the King’s Speech to the possible introduction of a “right to disconnect” for UK workers could be forgiven a degree of scepticism. Is such a thing really possible in a global business world? Here is the view from Australia, which is bringing in such a right next month.

From 26 August, the Fair Work Act (FW Act) will provide workers with a right to refuse to respond to contact from their employer outside work hours, unless the refusal is unreasonable. They will have the right to “not monitor, read or respond” outside those hours to contact from their employer (or work-related contact from third parties, e.g. customers and clients), without fear of disciplinary action or punishment at work.

When considering whether a refusal by the employee is reasonable, it will be necessary to consider:

• The reason for the contact or attempted contact (though how you know if you haven’t read it is a separate question)
• How the contact is made and the level of disruption it causes
• The extent to which the employee is paid to remain available at that time (such as an on-call allowance) or to work reasonable additional hours outside their ordinary hours of work
• Relatedly, the nature of the employee’s role and level of responsibility
• The employee’s personal circumstances
• If the contact or attempted contact is required under law

If the unpaid outside-of-hours contact continues or results in a dispute between the employee and employer, then the employee can seek the intervention of the Fair Work Commission and ask for a “stop order”. If the employer does not comply with the stop order, the FWC will be empowered to make any order it considers appropriate (other than issuing a fine or ordering compensation for the employee). If an employer contravenes an order of the FWC, then the employer can be subject to a civil remedy penalty.

At this stage our view is that there will not necessarily be a flood of employee making applications for “stop orders”, mostly because there is no prospective financial return in it for them. Rather we think that this will be another right/protection that already disgruntled employees use to leverage their position. We are already seeing employee-friendly lawyers quote the right, particularly in bullying complaints and complaints about psychosocial hazards. We also consider that the real “bite” in this measure in Australia comes more from the risk of a general protections claim (see point 4 below) than from an ear-chewing from the FWC.

What steps can be taken to prepare for the new right?

The “right to disconnect” provisions in the FW Actdon’t expressly oblige employers to take any specific action before the commencement date next month. That said, we recommend employers do take certain steps in preparation, including some or all of these:

1. Reviewing and updating employment contracts to check if hours of work and remuneration clauses are adequate to protect the employer with respect to this development. This will include some inevitably fairly self-serving language around the hours being reasonable in light of the global nature of the business and the employee’s role and remuneration and the employee acknowledging that they accept the offer of employment in the knowledge that this is the case.
2. Updatingpolicies and procedures to reflect the new right to disconnect changes. Especially where there is a need for employees to work with colleagues and clients in different time zones, having an adequate right to disconnect policy in place will help employers navigate the operational impacts of these changes by managing employee expectations.
3. Informing employees based overseas as well as all managers of the impact of these changes. Employees who are based overseas may not be aware of the new right to disconnect and the impact this will have on how they work with their colleagues in Australia. Issuing a separate communication to these employees about the right to disconnect in Australia will help them to continue working with their Australian colleagues with a proper understanding of legal context and so minimise interruptions to the operation of the business and the scope for reciprocal ill-will born of lack of understanding.
4. Further, as the right to disconnect will be a “workplace right” under the FW Act, any adverse action taken by managers against employees for asserting this right will give rise to a risk of general protection claims. For example, employers may readily be tempted to favour an employee who works after working hours over those who do not when considering pay-rises or promotions. To minimise this risk, it is important for managers to understand their obligations with respect to their reportees under the right to disconnect. We consider this to be one of the most challenging aspects of the new provisions – how you can reasonably expect businesses not to favour in some form or another those who work longer, are more responsive, more available to help in a late-night crisis, etc. It may be that as case law develops, it becomes clear that where the exercise of those attributes is of genuine benefit to the business and the employee’s pay reflects that, refusal would almost automatically be unreasonable such that there would be no claim anyway. It is hard to think that the Act is intended to be construed as allowing (and protecting) employee “disconnection” where it would be overtly inimical to the interests of the employer.
5. Conducting job mapping exercises and ensuring position descriptions are reviewed and updated and/or drafted to adequately reflect the requirements of positions/roles. This may even include a reference to the role requiring by its nature, out of standard business hours contact.
6. Giving particular consideration to the operational impacts of the changes in relation to employees already working under flexible working arrangements (e.g part time employees who may end up working a significant number of additional hours without being remunerated for them).

The FWC is required by new provisions in the FW Act to issue written guidelines about the operation of the right to disconnect. However, it appears that the guidelines will not be published any time soon. The FWC has stated that “it is not presently the intention of the Commission to make guidelines concerning the right to disconnect prior to 26 August 2024. The Commission considers that it will be in a better position to make guidelines once it has dealt with at least some disputes concerning the operation of the right since this will allow it to have some understanding of the practical issues for which guidance may be required.” This is clearly the equivalent of putting a new car on sale without having yet done the crash-testing, but (albeit at some cost to the parties involved in those early disputes) we would expect the guidelines to provide further assistance for employers in navigating the implications of the right to disconnect.