Right to disconnect: Who’s responsible for limiting out-of-hours contact?

The news

Australians can now refuse to monitor, read or respond to work communication outside of paid hours unless doing so is unreasonable, after right-to-disconnect laws came into effect on Monday.

The right to disconnect doesn’t apply to emergencies, and working out what’s reasonable includes the reason for making contact, how disruptive it is, the nature of someone’s job and their personal circumstances, including caring responsibilities.

A legal right to disconnect has taken effect for Australian companies with 15 or more employees. Smaller businesses are to follow next year. Credit: iStock

The laws have sparked fierce political debate from unions, business groups and other advocates, including Opposition Leader Peter Dutton, who has vowed to overturn them if elected.

But now the dust on Australia’s new industrial relations reality has settled, what if you still come home to find late-night Slack messages from your boss, or if your automatic out-of-office email goes ignored?

Do I have a right not to be contacted?

In short, no. Chris Wright, associate professor in the Discipline of Work and Organisational Studies at the University of Sydney, says the new laws do not prohibit managers from contacting employees outside of hours.

“It simply protects employees from being obliged to respond or to reciprocate contact,” he says.

When Greens leader Adam Bandt introduced his amendment to the federal Fair Work Act last year, it did include a specific prohibition against contact by employers. But the deal reached between the government and the crossbench did not enshrine this, instead offering employees legal protection, including against dismissal, if they choose to ignore unreasonable after-hours contact.

Wright says of the 20-odd countries that have introduced a right to disconnect, he knows of just one, Argentina, that also has a right not to be contacted.

Whose responsibility is it to turn off notifications?

John Hopkins, associate professor of management at Swinburne University, says the onus remains on employees to silence out-of-hours contact, through muting notifications or setting out-of-office messages.

“If you’re an employee, and you’re getting notifications outside of hours, and they’re causing you stress or anxiety, the law doesn’t actually cover that. That’s something you’re going to have to figure out yourself,” he says.

If employees continue to be contacted and not compensated outside of working hours, they’re expected to resolve disputes at the workplace level. If that fails, only then will the Fair Work Commission step in, potentially issuing a stop order against employers, which could result in a financial penalty.

What if I ignore ‘unsnoozed’ messages?

Messaging services like Slack and iMessage allow senders to push through messages so they still show up for recipients who have muted their notifications. Hopkins says whether ignoring these messages constitutes an unreasonable refusal will come down to discussions between employers and employees beforehand.

“So for instance, if your worker goes home at five o’clock, they’re within their right to mute their notifications work. If those notifications, if you can overpower that mute and send that message to the employee, maybe the negotiation around that would be, ‘I won’t do this unless it’s important’,” he says.

Hopkins says for most workplaces, answering mobile phone calls would be a more reasonable expectation in the case of an emergency, and email, Slack or text probably wouldn’t be seen as urgent contact.

What about out-of-office messages or schedule sending emails?

Wright says while employers are not obliged to heed out-of-office messages or email signatures that advise to only expect a response inside working hours, they are still good practice for employees wanting to limit unwanted contact.

He says schedule or delay-sending emails can be too, but that they are potentially fraught if they encourage employees to send emails outside of working hours.

“They’re often so busy in their work day that they can’t do everything they need to do within those hours. So I think it’s incumbent upon employers to think about how they can schedule work activities most effectively,” he says.

What’s best practice for employers?

Sarah McCann-Bartlett, chief executive of the Australian HR Institute, says employers can help by communicating with third parties, like clients, whose contact with employees is also covered by the right to disconnect, as well as providing “practical samples” of reasonable after-hours contact and looking at additional compensation for availability to be contacted outside of hours.

She says HR departments and employees should “very clearly state and communicate what is and isn’t expected”, including of workers whose contracts include being contactable outside of hours, such as managers, executives and IT support staff.

“There’s always a balance between personal responsibility and the responsibility of the organisation,” she says.

“The way the employee responds … that’s up to them to decide.”

with AAP

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