From 26 August 2024, employees have a new “right to disconnect” from work-related contact outside of normal work hours. Here’s what aged care providers need to know.

What is the right to disconnect?

The “right to disconnect” is a new workplace entitlement introduced as part of the “Closing the Loopholes” amendments to the federal Fair Work Act designed to protect an employee’s work-life balance. The right commences on 26 August 2024 for most aged care providers and on 26 August 2025 for providers with fewer than 15 employees*. The Fair Work Commission will be inserting a “right to disconnect” term into all awards shortly, which will provide further clarification on how the right applies to aged care and home care.

This entitlement means an employee may refuse to read, monitor, or respond to work-related calls, emails, texts or other means of communication outside of their working hours. This includes contact or attempted contact from the provider, as well as from contractors, volunteers, and older Australians and their carers, friends and families.

Of course, this right is not without conditions: the employee’s refusal must be “reasonable”. Whether the refusal is reasonable will depend on a number of factors, which include:

• the reason for the contact or attempted contact. For example, refusal to respond might not be “reasonable” if there is an emergency or the employer needs to impart information that an employee needs to know before they arrive at work or changes to rosters
• how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee
• the extent to which the employee is compensated for being available to receive and respond to contact or for working additional hours in responding to the contact (compensation may be monetary, for example: “on call” allowances or overtime payments; or non-monetary, for example: time in lieu) 
• the nature of the employee’s role and the employee’s level of responsibility – the more senior the employee (and presumably the better paid) the greater the period when they can be contacted
• the employee’s personal circumstances, which includes their family or caring responsibilities.

The Fair Work Act explicitly states that if the contact or attempted contact with the employee is required by law, then the employee cannot refuse the contact. Contact relating to an investigation arising from a mandatory report may be an example.

The Fair Work Commission is issuing amendments to Awards to clarify that an employer may require an employee to monitor, read or respond to contact, or attempted contact, where: 

• the employee is being paid a stand-by allowance and the contact it to notify them that they are required to attend, perform work, or other related matter 

• there is an emergency roster change, or 

• they are being recalled to work.  

Where an employee is covered by an enterprise agreement, if the enterprise agreement provides a more favourable right to disconnect clause than the legislation, then the enterprise agreement clause will apply.

What happens if an employee has refused to monitor, read or respond to contact?

If an employee has refused the contact or attempted contact, the matter will turn on whether the refusal is reasonable in the circumstances. The starting point is that the employee has the right to refuse, and the aged care provider must determine whether what they are expecting is itself reasonable in each employee’s case. Obtaining enough information regarding the circumstances will greatly assist in finding the best solution, which will balance the needs of the provider and the right of employees to have a private life.

If the matter cannot be resolved through discussions between the provider and the employee, the employee or the provider can ask the Fair Work Commission to treat it as a dispute. The Commission has been given quite broad powers to make orders to stop an employee refusing contact or to stop the provider requiring the employee to respond. It also has power to make any other order it considers appropriate.

If the employee believes that they have suffered disadvantage at work (“adverse action”) as a result of having refused after-hours contact, then taking action in the Federal Court can result in fines against the provider as well as compensation (uncapped) for the employee. A further risk for the provider is that action can also be taken against the provider and senior staff under workplace health and safety laws if it can be shown that the provider’s policies or conduct presented an unacceptable risk of harm, or caused actual harm.

What should Aged Care providers do?

The key consideration is that any requirement or request for employees to respond to after-hours contact should in itself be reasonable. To that end, providers should:

2. Because expecting an employee to be available after their normal working hours touches on both an employment right and potentially a psychosocial hazard, seek to find out if employees who are being contacted after working hours see this as a concern. This may give an indication of whether this is likely to present an issue, or the extent of the issue, if an employee or employees were to refuse contact.

3. Review current practices to see if all of those situations when employees are contacted after hours are actually necessary or whether some of those contacts or responses can be deferred to within working hours – for example, where no action can be taken until the next working day. Is it really urgent? Do all of the people who are being notified really need to be notified, or can there be an escalation procedure? Is it always necessary for the person to respond immediately, or can the communication be sent at any time, with the response occurring during working hours?

• Clarifying normal working hours for each employee.
• Identifying in employment contracts and complementary procedures when certain employees are expected to be available for after-hours contact, and the reason for the contact.
• Determining if additional remuneration would be appropriate to compensate for after- hours availability or response: Are there call-out or on-call allowances (usually award provisions)? Do employment contracts refer to the level of remuneration specifically including compensation for some after-hours work?
• Providing guidelines on the circumstances when certain employees can be contacted after hours and when they should not be contacted
• Considering procedures to reduce unnecessary disruption, such as adding an optional automated message to emails indicating that a response is only expected during working hours, or using rosters to reduce the onus on only one individual for after-hours contact.

5. Brief all staff with supervisory responsibilities on the right to disconnect and their obligation to ensure that after-hours contact is reasonable and respects employees’ right to a private life. Senior staff should be monitoring the extent of after-hours contact, for both their staff and themselves, and taking action where this is not reasonable, appears to be causing concern or where it presents a risk to the health of individuals. Remember that, even if there is a requirement in a contract of employment that an employee is to be available, the volume or timing of contacts may still be capable of causing a risk of harm, which the provider has a duty to minimise as far as practicable.

6. If this has not yet been done, very clearly communicate to older Australians and other third parties, the employees’ legal right to disconnect. Clearly set out the times and channels when employees will be available and when they will not be available. Be consistent in protecting your employees from encroaching third parties.

*When counting employees, this includes casuals who have regular and systematic work schedules.