Clocking off? APSC releases its guidance on the right to disconnect

The right to disconnect grants all national system employees an enforceable right to refuse to monitor, read or respond to work-related contact from their employer or a third party (including colleagues, clients, external stakeholders and members of the public) outside their working hours unless it is unreasonable to do so. For non-small business employers and employees the right to disconnect will come into effect on Monday, 26 August 2024, with small businesses following a year later.

In preparation for the commencement of the right to disconnect, the Australian Public Sector Commission (APSC) has released its Guidance for the Commonwealth public sector. This Guidance is intended to support public sector employees and agencies in navigating the right to disconnect in the workplace. Notwithstanding that the Guidance has been developed for the Commonwealth public sector, there are general principles that are applicable in all workplaces that will assist both private and public sector employers with navigating this new development.

Key takeaways for Commonwealth entities (and other employers)

While not mandatory, the Guidance provides “best practice advice and guiding principles” for all Commonwealth employees and managers on implementing the right to disconnect. The general theme of the Guidance is to encourage “clear communication” and “setting expectations”, so that managers and employers discuss out of hours contact preferences with employees and set expectations that are appropriate to workplace needs and the employee's particular role.

Employees can refuse to monitor, read or respond to work-related contact where it is unreasonable to do so. What is “unreasonable” is assessed objectively, having regard to a range of factors. In considering whether to make contact outside of hours, the Guidance outlines some relevant considerations for managers as follows:

• Is it necessary or urgent? It is accepted that contact may be appropriate in emergency situations or other time sensitive circumstances. For example, to notify employees of urgent office repairs that would prevent them from safely attending the workplace, or where contact is necessary to conduct a welfare check of confirm return to work arrangements. In circumstances where contact can reasonably wait to be made during the employee’s ordinary working hours, this may not be appropriate;
• Type of contact: These considerations include the time the contact is made, the length of time required to respond, and the mode of contact and relative level of disruption (i.e. a phone call versus an email). Managers and employees are encouraged to have regular discussions to set parameters around out of hours contact, particularly as job roles and responsibilities evolve. This may include discussing preferred methods of contact, such as opting for a text message instead of emails, to minimise disruption;
• Role or level of responsibility: As a general principle, managers should avoid contacting junior employees outside their ordinary hours unless in emergency situations or the contact is required in the context of the employee’s role and responsibilities. If employees are expected to perform out of hours work, it recommended that this expectation be reflected in any written materials that set out the employee's role and responsibilities, such as in the position description, employment contract, and even job advertisements;
• Remuneration for being contactable: The Fair Work Act expressly provides that the extent to which an employee is compensated for being contactable is a relevant consideration as to whether refusal is unreasonable. This includes the employee’s base salary and applicable allowances, but may also include non-monetary compensation such as leave;
• Personal circumstances: Managers should consider the personal circumstances shared by the employee when considering making contact out of hours, such as parenting or caring responsibilities. Health and wellbeing of employees is also relevant here in circumstances where the employee is in a role which increases the importance of being able to disconnect, including an employee who is regularly exposed to traumatic material. Also relevant here is the working hours of the individual employee, and the importance of understanding the ordinary working hours of all employees, including leave, part-time arrangements, flexible work arrangements and other variables, such as carer responsibilities, that impact those working hours.

There are a variety of considerations relevant to whether out of hours contact is reasonable or not, however clear communication and setting expectations around an employee’s role will assist in clarifying the parameters on whether a failure to monitor, read or respond to contact is reasonable. While employers are not prevented from making contact, the above considerations should be taken into account before expecting an employee to monitor, read or respond the out-of-hours contact.