Right to Disconnect
The right to disconnect commenced operation on 26 August 2024 for employers other than small business employers, and on 26 August 2025 for small business employers – employers with less than 15 employees. This means that employees have the right to refuse contact outside their working hours unless that refusal is unreasonable.
What do you need to do?
Rest assured we are here to help you and if you have any questions you can contact our Business Advice Hotline on (08) 8 300 0000 (select option 1).
In the meantime here are some things that you can think about if you haven’t already:
- Consider the forms of outside working hours communications you currently use in your business and whether these could be claimed to be ‘unreasonable’ by an employee and how you will challenge or otherwise work around this if it is unreasonable.
- Educate managers and where relevant employees on your expectations for contact outside working hours and why.
- If you are a policy-based company, draft and implement a policy (or at least a policy position) in respect of outside working hours communication — especially technology based.
- Review and potentially amend contracts of employment to ensure that if an employee is being paid above a minimum award rate, part of their remuneration is specifically stated as being paid in contemplation of outside work hours communication.
- Encourage managers to respect employees’ reasonable privacy outside of their working hours and avoid unnecessary contact.
- Consider setting clear expectations from the beginning when entering arrangements/relationships with clients in relation to the right to disconnect.
- Implement a procedure for employees to follow if they consider that they have concerns that their manager/supervisor is contacting them unreasonably outside of their working hours.
Some practical tips to consider when thinking about the way you communicate with others outside of working hours:
- Is contact necessary: Before contacting a colleague after hours, consider whether it’s necessary. If it can wait until the next business day, let it wait until then.
- Communication is important: To help manage expectations and reduces the pressure on others to engage with anything that’s not urgent outside of their working hours. Consider adding into after-hours text or email communications, indicating your expectations around a response such as “My working hours may not be your working hours. Please do not feel obligated to respond to this e‑mail outside of your normal working hours.”
- Scheduling tools can help: Utilise email scheduling functions to send messages during working hours, even if you draft them after hours, for example, on Sunday you draft an email to an employee at 10:00am but use the scheduling function in Outlook to program the email to actually be delivered to the employee’s inbox at 9:00am on Monday morning.
Casual Work Changes
Casual Work changes commenced on 26 August 2024. There is a new definition of casual employee under section 15A of the Fair Work Act 2009. This includes a general rule that an employee is a casual only if:
- there is no firm advance commitment to continuing and indefinite work, and
- they are entitled to a casual loading or a specific rate of pay for casuals under a Fair Work instrument or their employment contract
It’s important to note that whether there is a firm advance commitment needs to be assessed on:
- the real substance, practical reality and true nature of the employment relationship
Other factors that must be considered include whether:
- the employer can offer or not offer work to the employee (and whether this is happening)
- the employee can accept or reject work (and whether this is happening)
- it’s reasonably likely there will be future work available of the kind the employee usually performs in the employer’s business, based on the nature of the business
- there are full-time or part-time employees performing the same kind of work in the employer’s business as the work the employee usually performs
- the employee has a regular pattern of work even if it changes over time due to, for example, reasonable absences because of illness, injury or other leave.
The above factors are not a full list and other factors may apply. It should also be note that not all factors need to be satisfied and a single factor won’t determine whether a person can be considered a casual employee or not.
How does this apply to casuals employed before or after 26 August 2024?
Employees classified as casual who were employed before 26 August 2024 will stay casual under the new definition unless they move to permanent employment.
For casuals employed from 26 August 2024, the new casual employee definition will apply.
Employees who start as a casual, will stay casual until their employment status changes either through:
- a conversion process or Fair Work Commission order, or
- accepting an alternative employment offer and starting work on that basis.
What do you need to do?
Here are some things that you can think about if you haven’t already when it comes to casual employee considerations:
- When assessing whether an employee has a firm advance commitment to continuing and indefinite work, the employer and employee need to consider the real substance, practical reality and true nature of the employment relationship.
- A firm advance commitment might be found in the employment contract, or in a mutual understanding or expectation between the employer and employee. Specific matters need to be considered when making an overall assessment of whether there is a firm advance commitment to continuing and indefinite work. These include:
- whether the employer can choose to offer or not offer work, and whether the employee can choose to accept or reject work (and whether this actually happens)
- whether it is likely that there will be future continuing work available, considering the nature of the business
- whether permanent employees perform the same kind of work that the employee usually performs, and
- whether the employee performs a regular pattern of work. Other matters may also be considered.
How can we help you?
Our Business Advice Hotline is only a phone call away and can provide you with advice on any questions you may have regarding the new terms, call us on (08) 8300 0000 (select option 1).
You can also speak with one of our expert Industrial Relations Consultants who can assist with creating policies, responding, and managing disputes, conduct information sessions or make amendments to your position descriptions or contracts. You can register your on-line query here
