From The Point: Industrial advice on the right to disconnect

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The Right to Disconnect: What does it mean for IEU members?

The federal government recently passed changes to the Fair Work Act 2009 that include the ‘right to disconnect’. These changes will be beneficial to IEU members and allow them to better manage their work and personal lives and the ever-increasing expectations of employers (and parents!) regarding workload outside of normal working hours.

What is the ‘right to disconnect’?

Broadly speaking, the ‘right to disconnect’ is a new workplace right that provides employees with the right to not respond to out-of-hours contact from their employers and, relevantly for employees in education, contact from third parties such as students and parents. Employees can still respond if they want to but will be protected from unfavourable treatment if they decide not to.

Great, so can I switch off my phone and not check my work emails as soon as I leave school today?

Not quite! Although the ‘right to disconnect’ has been passed into law by the federal government, it doesn’t start right away and needs one final approval as a formality before it can start operating as law. We’ll update members once we know the date the law will start.

Once the law starts, it states that an employee is allowed to refuse to monitor, read or respond to contact, or attempted contact, outside of the employee’s working hours. Importantly for IEU members this refusal can be in relation to contact from your employer and from third parties, e.g. students or parents and including emails, text messages, or other forms of communication. However, if the refusal to respond is ‘unreasonable’, an employee isn’t protected by the right to disconnect.

Brett Mayles/Pexels

When is a refusal to read or respond to contact outside of working hours unreasonable?

The law states that the following must be considered to determine whether a refusal is unreasonable:

• 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

• The employee’s personal circumstances (including family or caring responsibilities).

The above isn’t an exhaustive list and other factors may be considered on a case-by-case basis.

What if there’s a dispute with my employer about a refusal to respond outside of my work hours?

If you refuse to respond to a communication outside of work hours and your employer believes that this refusal is unreasonable, the first step is to try to resolve the dispute through discussions at the workplace level. If discussions at the workplace level don’t resolve the dispute, either you or the employer can ask the Fair Work Commission (FWC) to deal with the dispute.

What can the FWC do to resolve a dispute?

The FWC can make orders against either the employee or the employer. In brief, if the FWC thinks the refusal to respond is unreasonable, it can order the employee to stop refusing to respond. If it considers the refusal not to be unreasonable, it can order the employer to not take action against the employee or to not require them to respond.

Can the IEU represent me in a dispute?

Yes! If you have a dispute with your employer, you have the right to be represented by the IEU.

What if my employer disciplines me or terminates my employment for refusing to respond?

If your employer takes adverse action against you, you may be able to bring a general protections claim for reinstatement and/or compensation. General protections claims are difficult, and we recommend you contact us immediately if your employer takes, or proposes to take, disciplinary action against you.

Do I still have this right if it’s not in my workplace Agreement?

Yes. The ‘right to disconnect’ will automatically become a part of every employee’s employment rights.

What if my workplace Agreement already has a term that provides a ‘right to disconnect’?

If you are covered by an Agreement that has a ‘right to disconnect’ term that is more favourable than what the new law provides, the term from the Agreement will apply. If it is less favourable, the new law will apply.

What about if my workplace is covered by a Modern Award?

In addition to automatically becoming a part of your employment, the law amends the Fair Work Act 2009 to require that all Modern Awards are updated to include the right.

Are there any exceptions to who the right applies to?

The right won’t apply to employees of a small business employer (an employer that has fewer than 15 employees) until 12 months after Royal Assent.