QHA-Review_April_Digital

EMPLOYMENT RELATIONS with Sarah Swan
UNDERSTANDING THE NEW RIGHT TO DISCONNECT
QHA REVIEW | 44
On Monday 26 February 2024, the Fair Work
Legislation Amendment (Closing Loopholes No 2)
Act 2024 received Royal Assent, introducing an
enforceable workplace right for an employee to
‘disconnect’ from work. These provisions were a
last-minute inclusion in the amending legislation and
weren’t something that business was consulted on
prior to its introduction into parliament. But what do
these provisions mean for the hospitality industry?
What is the ‘right to disconnect’?
Under the new provisions, an employee may refuse
to monitor, read or respond to contact, or attempted
contract, from an employer or third parties (i.e. clients)
outside of the employee’s working hours, unless the
refusal is unreasonable.
‘Contact’ will be given a broad interpretation to include
phone calls, text messages, emails, messaging
platforms (e.g. WhatsApp, Facebook Messenger) or
any other means to engage with employees.
The following factors will be taken into account when
determining if an employee’s refusal to engage with
contact 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
(either financially or with non-monetary
compensation):
• 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)
An employee or employer will be able to apply to the
Fair Work Commission (FWC) to deal with a dispute
about these provisions – but only after failing to resolve
it at the workplace level.
What does this mean?
What the right to disconnect actually does is prevent
employees from being punished for refusing to take
unreasonable work calls or answer emails in their
unpaid non-work time. This is not a substantial shift
from what already occurs in practice.
The example we provide is the introduction of a new
workplace policy which is provided to all staff via an
email. Staff are asked to respond to that email with
their acknowledgement as having read the policy.
If a casual food and beverage attendant does not reply
to that email with their acknowledgement until they are
next back at work, the employer would not currently
be taking disciplinary action against the employee for
their failure to respond when they were not at work.
The employer would instead wait until the employee
is next at work and would remind the employee that
they still need to read the policy and respond to the
email, which is where the matter would end. These
new provisions will not fundamentally change these
practices; however a common sense approach should
be taken.
What can employers do?
Contrary to some media suggestions, the right to
disconnect does not oblige employers to cease
contact with employees outside of working hours.
Hospitality is a 24/7 industry. With extended
trading hours, seven-day operating schedules and
management of multiple competing demands, it is not
unreasonable to expect that employers are regularly
contacting a portion of its workforce when they may
not be at work.
Employers can continue to contact employees outside
their ordinary working hours as needed, including in,
but not limited to, the following circumstances: