Your employee rights explained outside work hours
In a recent proposed change to the Fair Work Act 2009, employees will be protected against employers trying to contact them outside of work hours. The bill has been accepted (as of 12 February 2024) and is currently waiting for the royal assent. Where the change will come into effect 6 months after the royal assent is signed. For small businesses (less than 15 employees) these changes will take effect after 12 months.
Called the Closing Loopholes Bill No. 2 or “Right to Disconnect”. Employees are not allowed to be punished for refusing to monitor, read or respond to contact (or attempted contact) from their employer or a third party outside of their work hours. The new changes have not been completely defined and may be open to change as cases come forward.
“Contact” has not been explicitly defined, however we can largely assume it will follow the normal definition of the word. Which would include all verbal and written communication including through messenger, whatsapp, phone calls, etc.
Furthermore, what is considered outside work hours will depend on the industry. Most will fall under the standard 38 hour work week, Monday through Friday. However, this may change depending on how shifts are allocated, whether there is night shift, or a FIFO schedule.
What is a good reason to ignore work?
The caveat is that the refusal to connect with their employer outside of work hours must be on reasonable grounds. As most things in law, what is considered ‘reasonable’ is interpretable and often shaped as case law around the subject grows. The Fair Work Commission has not provided an exhaustive list of what is reasonable, however they have provided relevant factors to consider.
- Whether the employee is compensated for working outside their work hours
- Their level of seniority and level of responsibility
- The reason for the contact – ie, whether there is an emergency
- The way the employee is contacted
- Whether the employee is dealing with outside circumstances – family responsibility etc.
As the act may infer, this change is not to promote employees deferring their duties and responsibilities. Senior staff who are appropriately compensated to be available outside of regular work hours are not encouraged to ignore all and every communication that goes their way. They still have their duties to perform, which would be inclusive of being available.
In a similar manner, exceptions to this change include Australian Defense and Federal Police. As the consequences of not being available may be catastrophic.
Who are we protecting
This change is to protect employees who are being harassed for their time outside of work hours. Now expected to be protected by Fair Work laws if they decide not to work outside their work hours without adequate compensation or reason. Where before it would have been easier to be dismissed or adversely treated for refusing to work. Now there’s a clearer pathway through the Fair Work Commission to mitigate these issues.
Before employees march to Fair Work in fear that they are being exploited. The Fair Work Commission does emphasise that employees should first try to resolve any issues and complaints with their employer directly. This minimises the backlog of Fair Work claims, and minimises any risk of negatively affecting the employer/employee relationship. There can also be a faster resolution. In the case that the employer ignored the issue or there is no amicable resolution, then the mediating effects of Fair Work would be most appropriate.
General Protections
These changes will be adopted in the general protections avenue of Fair Work. As the right to disconnect will be protected as a workplace right. Similarly to the right to take leave, become a union member, or lodge a Workers Compensation claim. If an employee is adversely treated after exercising a workplace right then they are eligible to lodge a General Protections claim.
To be adversely treated, otherwise called adverse action, is not limited to termination. This could result in an employee being demoted for no reason, being placed at a location far away so it’s hard to travel, or discriminated against. What can be an adverse action is not exhaustive but is considered anything that would make the employees job unnecessarily harder or worse for no reason. And that a detriment has been suffered because of the adverse action.
Issues to the right to disconnect
For some employees this change will allow greater opportunity to advocate for their workplace rights. And allow for an avenue to resolve workplace issues. However, there are a number of issues that may render the “Right to Disconnect” less helpful.
Firstly, surrounding work hours and what is considered “outside of work” responsibility. Many salaried contracts, such as many in the tech and IT industry, will state work hours, with the addition of ‘reasonable additional hours’. This additional clause is presumably reserved for emergency situations or tight deadlines.
However, it is also used as a scapegoat to have employees work longer than their expected salaried hours. Whether that be mandatory meetings scheduled outside of work hours, last minute tasks and projects, or other commitments. Even if the work can be rescheduled for a later date, there is nothing stopping employers eliciting fear with a fabricated stricter deadline. Therefore, this change may give employers greater incentive to force “necessary additional hours” even when not strictly necessary.
Contracts will be changed forever
In a similar fashion, a job description can include that an employee will be available outside of work hours. Particularly for a workplace that operates 24 hours. In cases where the employee is being appropriately compensated there may be no issues. However, not all workplaces will compensate their employees fairly.
A company has significant freedoms in what they want their jobs to entail. Therefore, in the case that the employee is not receiving compensation for working outside their work hours, and they do not have time sensitive responsibilities, but their job description dictates they must be available, would they have the right to disconnect from work as other employees can.
One argument allows that the employee should be allowed to disconnect without punishment as there would be no major consequences if they did not respond immediately. However, the requirement to be available could be considered a reasonable direction. Therefore, if the employee was punished it would not be for exercising their right to disconnect from work, but because they were not satisfying their entire job description and responsibilities.
Can there be sneaky loopholes
Moreover, the change infers that the employee has already left the premises of their workplace. Which questions whether these changes include the circumstance of an employee being told to work longer than their original hours while they are at work.
The employee is being told that they are not allowed to disconnect from work until a later time, however they are told during their regular work hours. If the employee were to refuse and then were placed on a bad project because of the fact, some may argue that it is adverse action, whereas the employer may argue it’s due to a lack of initiative and work ethic.
Employees need a change in work culture
In addition, the change would not resolve the root issue of workplace guilt tripping. Most employees do not work outside of their work hours due to their immense love for the job. Most do it in order to not face further repercussions. While this change tries to protect instances of unfair punishment for employees, the changes can only protect to a degree.
Employees can still face pressure to attend to work matters. While employers will not be allowed to punish employees. There is no real way to stop an employer from messaging an employee consistently asking for a work matter to be attended to. It may be done in a respectful way, however over time there is a greater chance for the employee to cave to the pressure of getting work done.
There can also be emotional tactics where the employer will be ‘disappointed’ or ‘upset’ if the work isn’t done. In that case it would be hard to convey that the employee is facing a punishment of emotional distress and anxiety. A more subtle punishment that can go unnoticed, where the employee does not even recognise they are being punished.
Reputational Damage
Furthermore, not completing work outside of work hours can have an effect on the employees reputation. Or place them in a position where they will no longer be considered for promotions or bonuses. This can often reflect the overall workplace culture. As the employee is being compared to a peer that is opting to ‘connect with work’.
Therefore, comparatively the disconnected employee looks as though they are completing less work or have a smaller work ethic. Additionally, many employers praise employees who “go above and beyond”.
This creates an uncomfortable environment where employees are technically given a choice to disconnect from work. However, the workplace culture dictates whether an employee can or cannot. On the surface there may be no detectable changes. Nonetheless, the employee is still disadvantaged by exercising their right to disconnect if their workplace culture does not permit them to.
Therefore, even with the soon to be implemented changes, there are tactics that employers can use to ensure that work gets done regardless of the time. Rather than enforcing a better work/life balance, employers will become sneakier in their ways to ensure the work they want gets done.
Employer’s concerns
Many employers have been enraged at the new proposals due to there being a chance they are fined if contacting employees outside of work. The Albanese Government has suggested that companies will be fined up to $18,000 if caught contacting employees outside of work hours. This would be done by Fair Work issuing companies a “stop order”. And if they breach the order then they have the opportunity to be fined.
There are serious concerns as the changes seemingly apply a “one fits all” blanket approach to all different kinds of industries and work types. However, the fine is not an automatic process. There are steps and precautions to the fines that would hopefully ensure that the biggest culprits of excessive workplace culture will be at risk of the biggest fines. First Fair Work must deem the contact unreasonable to issue a stop order. Then the company would have to breach the stop order in order to receive a fine.
Most companies should be afraid of criminal liability if they were found breaching their order and receiving a fine. However, this also provides greater incentive for all types of companies. Particularly larger international companies, to take the new laws seriously.
Concerns about those most vulnerable
However, there are legitimate concerns that small businesses and start-ups will be unfairly targeted as they tend to have more fluid work practices that can lead to contact outside of work hours. Especially as smaller businesses tend to have greater personal relationships within that workspace. The Fair Work Commission typically has more lenient guidelines for small businesses, and there is a high chance that this new legislation will follow that pattern.
Furthermore, there is an opportunity for the fine to actually discourage employees from seeking Fair Work’s help. If their claim were to end in a stop order or a fine there is a large chance that there will be no salvageable relationship between that employee and the employer moving forward. Particularly if all they want is to be left alone after work hours.
Many employees are discouraged from lodging Fair Work claims as they do not want to “cause problems” or “start issues”. While the employer is still conducting themselves in an illegal manner, the employee has to garner the courage to go against their employer in the fight for justice. This is not always an easy feat to achieve. Therefore, with greater consequences to the company, some employees may be further discouraged from starting any sort of claim.
Conclusion to: What Does it Mean to Disconnect from Work
At the moment there are a number of fears and speculations as to how the “right to disconnect” changes will affect the workplace. Especially as there are a number of arbitrary terms that will be up to interpretation. Employees justifiably feel threatened with possible dismissal. It’s very likely that we will not understand the full scope of the new laws until a number of cases have transitioned through the Fair Work system. This will give courts and Fair Work the opportunities to outline the expectations and limitations of this rule.
Prior to the commencement of these changes employers and employees alike should take note and be cautious of how communication outside of work hours is conducted and make necessary changes as required. We are leading workplace advisors and commentators. Any issues around casual employee issues, discrimination or anything else give us a call.
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