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Disconnecting not so simple

The new Right to Disconnect sounds simple in theory, but plenty of questions remain about how it will work in practice, a webinar audience was told last month.

Community Legal Centres Queensland hosted Connect with the New Right to Disconnect on April 18, a presentation by employment lawyers Jacinda Gray and Nancy Katakis, from Corrs Chambers Westgarth in Brisbane.

The pair provided an overview of the new right, and the practical implications for employers and employees. This included how the right might be exercised, how an employer can respond, dispute processes, interaction with the Fair Work system, and how employers can “risk-proof” their workplaces.

Nancy said there was uncertainty about the right, which will take effect on 26 August this year (or a year later for small businesses) as Section 333M of the Fair Work Act 2009 (Cth).

She said factors which needed to be considered when determining whether a refusal of contact was reasonable or unreasonable were: the reason for the contact; how it is made and the level of disruption; compensation; the nature of the role and level or responsibility; and personal circumstances.

“It will be interesting to see what guidance material will be released by the Fair Work Commission to provide clarification on how the Commission will approach the question of when communications will be considered reasonable,” she said.

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“For example, what types of contact are considered more disruptive? Is a phone call always more disruptive than an email?

“Or what about someone who uses their phone device for work? In that case, would an email, if you had email notifications on, be equally as disruptive because you don’t have the option of leaving your workplace inside and not checking emails?

“What will be the view on ‘all in’ salary, or pay rates that include compensation for out-of-hours contact?”

Nancy also queried how the nature of a person’s role would be determined, and what the full scope of personal circumstances would be.

Jacinda said of most interest was the interaction between the right and the general protection regime.

“In terms of enterprise agreements, if an employee is covered by an enterprise agreement that contains a more favourable right to disconnect, then this will prevail over the right under the Act,” she said.

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“We anticipate the right to disconnect, or availability allowances, may be heavily disputed in workplace bargaining enterprise agreements.”

She said ultimately, the right to disconnect was divisive.

“There is a conflict of views, with business focus groups emphasising concerns for implementation and effects on productivity,”  she said.

“Union parties have instead focused on the importance of it being clear when a person is at work or not at work regarding pay, balance and expectation to work.

“Greens Senator Barbara Pocock, who was a key proponent of the reform, was of the view that it is not going to open the floodgates to legal cases, and was really about improving the conversation about the boundaries around our working time.

“So as you can see, there are really divergent views that really demonstrate the conflict that has arisen for a workforce that enjoys the benefits of more flexibility with when and how work is completed, including remote work, and working flexible hours to allow for caring and family responsibilities.”

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Watch a recording of the webinar here.

For upcoming Community Legal Centres Queensland webinars and events, visit the website.

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