Public sector right-to-disconnect advice goes further than the legislation, employers warn

A key business group says the federal government’s advice to public sector bosses about how to comply with new right-to-disconnect rules for employees goes further than required under the new legislation.

An Australian Public Service Commission guidance document calls for government agencies to update position descriptions and job advertisements and be model employers when implementing the new workplace right.

Right-to-disconnect laws are set to come into effect later this month.Credit: iStock

The guidelines, released in late July, are designed to give public sector employers “best practice advice” before the right to disconnect comes into effect on August 26 for all non-small-business employers.

But the Australian Chamber of Commerce and Industry’s director of workplace relations, Jessica Tinsley, says the guidance goes further than required under the legislation, and that private sector employers should not pay much attention to it.

Tinsley said while the legislation did not prohibit or prevent contact after hours, the guidance document sought to discourage managers from contacting staff except, for example, in an emergency.

“The guidance will cause public sector managers some headaches in practice, and is certainly not reflective of what is required by employers under the legislation,” she said.

“The legislation allows employees to refuse contact after hours when that contact is unreasonable – it doesn’t stop managers or others from contacting [them] after hours. This is an important difference in practice – private sector employers shouldn’t pay too much attention to these guidelines.”

Tinsley also raised concerns about how much it would cost businesses to implement the changes.

“Business will undoubtedly see a hit to their bottom line. If implemented properly, employers will see increased compliance costs and lost productivity from reduced flexibility,” she said.

The right to disconnect, which gives employees the ability to ignore unreasonable contact from employers after hours, is already law in countries such as France and Germany, and has been included in some enterprise agreements in Australia.

The Greens negotiated the right in February in return for supporting stronger rights for casuals and workers in the gig economy in the second tranche of then-workplace relations minister Tony Burke’s Closing Loopholes industrial changes.

The legislation allows workers to seek a “stop” order if employers and employees cannot reach an agreement about reasonable hours. If bosses breach that order, they can be liable for criminal sanctions and financial penalties in the worst instances.

“Reasonable contact” will be determined by various factors including the level and mode of contact, type of work, and a worker’s personal circumstances.

The guidance document says position descriptions, job advertisements and candidate information packs may need to be re-written to ensure they accurately reflect the agency’s reasonable expectations for out-of-hours contact.

“It is particularly important for these materials to be accurate if out-of-hours availability is an inherent requirement of the role and/or a person is receiving additional remuneration to be contactable out of hours, such as media officers, departmental liaison officers or executive officers,” the document says.

“Managers and employees should regularly discuss the types of circumstances in which an employee may be expected to monitor, read or respond to contact as this may change over time,” the document states.

It says while the right to disconnect does not prevent bosses from making contact, managers “should exercise judgment and weigh up all the relevant factors before contacting an employee outside of their working hours”.

The Public Service Commission has also recommended that employers train their managers and human resources employees.

Australian Council of Trade Unions secretary Sally McManus supported the guidelines, saying policies needed to be updated and discussions held with workers around what was considered reasonable and unreasonable contact.

“We’ve had big issues with some employers who just had no boundaries and no limits and not sharing an understanding of what’s reasonable and what’s fair,” she said.

Industry-wide guidelines on how employers should implement the right to disconnect will be released by the Fair Work Commission after it considers submissions.

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