‘The right to disconnect’: One key step employers can take now
Much has been written already about the newly legislated ‘right to disconnect’. Employees will have a workplace right to refuse to monitor, read or respond to contact from their employer outside of working hours, ‘unless the refusal is unreasonable’.
So firstly, it is the employee’s action that is in question here; not the action of the employer in making contact. How will an employee, much less their employer, know when a refusal is going to be unreasonable, especially when they won’t know what the contact is about unless they monitor and read it?
A number of factors are to be taken into account in determining whether a refusal is unreasonable. These include the reason for the contact and how it is made; the level of disruption it causes; whether the employee is paid to be on call; the nature of their role and level of responsibility and finally their personal circumstances.
How these will be interpreted and applied by the Fair Work Commission and the courts remains to be seen. But there is one step employers can take now to prepare for these laws coming into effect in six months’ time – address their position descriptions.
Position descriptions are often outdated, neglected or even missing altogether. This new legislation will make it more important than ever that position descriptions are kept up to date so that they accurately reflect the requirements of each employee’s current role.
If the level of responsibility and nature of the role is such that afterhours contact is going to be required, then it is imperative that this be made clear when the job is offered and accepted; and/or during the evolution of the position. Provided it is accurate, and has been provided to the employee, the position description will be one key piece of evidence in addressing at least the nature of the role and the level of responsibility it entails.
In other words, if an employer can say you knew that this job entails a degree of out of hours contact (for example, across time zones) and that you are the contact person and are paid accordingly, it may be more likely that the refusal is unreasonable. Of course, personal circumstances may mean that what is “unreasonable” for one may not be for another.
Position descriptions tend to become outdated when employees change roles within the organisation. Employers must put mechanisms in place to ensure position descriptions are updated when employees change jobs within the business. If, for example, the employer expects the employee to be available to respond to urgent matters (as is often the case for lawyers, for example, when courts, or even clients, impose strict deadlines) then it is vital that the employee’s position description reflects this. It is no good having a position description that is several jobs ago and refers to a more junior role.
It is most certainly not the answer to just make every position description refer to a boilerplate requirement to be contactable, irrespective of seniority, role or remuneration. That will just provide evidence supporting the reasonableness of the refusal.
So whilst there are going to be a number of factors that will be taken into account in determining this, we think that accurately documented descriptions of roles requiring out of hours contact, signed off by both the employer and relevant employees, will be vital.
Now is the time to audit and update your organisation’s position descriptions.
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