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Are you prepared for the new ‘right to disconnect’ laws?

Sonya Black, LLB (Hons), B.Com, Legal Team Manager – Workplace Law Team, Avant Law, QLD

Monday, 20 May 2024

are-you-prepared-for-the-new-right-to-disconnect-laws

One evening, a busy practice owner was reviewing a daily billing report his practice manager had sent him that day. He had some queries, so called the practice manager at 8pm to discuss the information.

The practice manager was watching TV with her husband when she received the call. Tired of the practice owner’s regular late-night calls out-of-hours, her husband implored his wife not to answer the phone, saying, “He calls you at night all the time. You’re not paid to take his calls after hours.”

 Frustrated she didn’t answer her phone, the practice owner sent her an email demanding a response prior to 8am the next morning.

The next day, he reprimanded the practice manager for not answering her phone or responding to his email before 8am. He warned her that if it happened again, he would give her a written warning.*

What do the laws mean for practices?

As this scenario highlights, some practices will need to rethink their approach when contacting staff members due to recent changes to the Fair Work Act 2009 (Cth) which give employees a formal right to disconnect from work.

The laws commence on 26 August 2024 (for employers with 15 or more employees) and on 26 August 2025 (for employers with less than 15 employees).

Under the legislation, an employee may refuse to monitor, read, or respond to contact, or attempted contact, from an employer or third party. For example, a practice’s accountant can refuse contact outside of their usual work hours unless the refusal is unreasonable.

The term contact is not defined but will likely include emails, phone calls and text messages.

How will unreasonable refusal be assessed?

The following factors will be taken into account to determine whether an employee’s refusal is unreasonable:

  • The reason for the contact or attempted contact.
  • How the contact or attempted contact is made and the level of disruption it causes the employee.
  • The extent to which the employee is compensated (including non-monetary compensation) to remain available to perform work or to work additional hours.
  • The nature of the employee’s role and their level of responsibility.
  • The employee’s personal circumstances, including family or caring responsibilities.

The Fair Work Commission is expected to release guidelines to assist employers and employees to determine what is reasonable.

An employer cannot take adverse action against an employee because they exercised their right to disconnect.

In the first instance, employers should try to resolve any dispute about an employee’s right to disconnect within the practice. If this isn’t possible, an employer or employee can ask the Fair Work Commission to resolve any dispute about whether contact is reasonable.

How can you prepare?

  • Identify out-of-hours contact and limit contact to what is absolutely necessary.
  • Educate practice managers and staff about the right to disconnect laws.
  • Review employment contracts: clarify expectations and compensation for after-hours work.
  • Develop policies about out-of-hours communication so all practice staff know and understand what is expected.
  • Learn to use technology to manage out of hours contact with employees. For example, use the delay ‘send’ function when sending emails at work.

Scenario

In the scenario above, the practice owner should not contact the practice manager outside work hours unless it’s absolutely necessary.

If the practice owner does contact the practice manager outside work hours, she can refuse to answer the phone or respond to his email unless her refusal is deemed unreasonable.

The practice owner can’t reprimand the practice manager for failing to answer her phone or respond to emails.

We are here to help

If you have any questions or would like more information on how to navigate the new right to disconnect laws in your practice, please call us on 1800 867 113 or fill out the form to organise a confidential discussion.

Disclaimers

*Scenarios in this article are fictitious and any resemblance to real persons, living or dead, is purely coincidental.

Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme.

This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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