HRBC Forum Summary

Flexible Work Arrangements: Managing Employment and WHS Risks

In this month’s complimentary HR Breakfast Club Forum, Legal Director Gabrielle Sullivan presented a valuable exploration into recent ‘Right to Disconnect’ legislation.

Gabrielle shared key insights into:

  • how the new ‘Right to Disconnect’ applies for employees;
  • the obligation for employers to refrain from ‘unreasonable’ contact with employees; and
  • how to determine what is and is not ‘reasonable’ contact.

The new ‘Right to Disconnect

Commencing on 26 August 2024 under Section 149F of the Fair Work Act 2009 (Cth), would soon require that a modern award, include a ‘Right to Disconnect’ term. Gabrielle clarified that this term would apply to any modern award which is in operation on or after commencement, whether or not the award was made before commencement.

The ‘Right to Disconnect’ dictates that an employee:

  • may refuse to monitor, read or respond;
  • to contact or attempted contact;
  • from an employer or third party (in relation to their work);
  • outside of the employee’s working hours.

This right applies, unless an employee’s refusal is considered ‘unreasonable’.

What is ‘unreasonable’?

While there is no articulated legislative test to determine unreasonable contact or refusal, Gabrielle raised the following five factors which, among others, may be taken into account to determine the appropriateness of the contact or refusal:

  1. the employee’s role and level of responsibility;
  • the reason for contact or attempted contact;
  • the mode of contact and the level of disruption it causes an employee;
  • whether the employee is compensated for working outside of their ordinary hours; and
  • the employee’s personal circumstances (including family or caring responsibilities).

How can employers/ employees settle disputes?

While Gabrielle emphasised that any attempt to resolve issues of unreasonable contact or refusal must first be attempted internally at a workplace level, she also noted that under these new reforms, employers or employees are now also empowered to refer disputes of this nature to the Fair Work Commission, which can make a ‘Stop Order’ to resolve the dispute.

This order may require an employer to cease unreasonably contacting an employee or require an employee to stop refusing reasonable contact, among other actions. If breached, a ‘Stop Order’ may attract civil penalties.

Going forward – safeguarding the workplace

To conclude, Gabrielle raised a series of personal suggestions for guests to consider how best to go about safeguarding their workplaces.

Gabrielle directed that for proactive compliance with these emerging obligations, employers should:

  • align business operations to prevent excessive and/or unreasonable contact with employees outside of ordinary working hours;
  • inform their clients and other third parties to reassess expectations about after-hours work communication;
  • train managerial staff to ensure employees who exercise the right are not subject to any detriment in relation to that; and
  • put in place policies that articulate their approach to the right to disconnect or how workplace disputes will be resolved.

If you are a HR professional in the ACT and would like to attend future HR Breakfast Club forums, visit our monthly forum page and register to attend. If you have any questions or queries about the information in this summary, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.

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