Right to Disconnect

Application

This Policy applies to all departments and public sector bodies of the State of Victoria and their non-executive level employees, as defined under the Public Administration Act 2004 (Vic) (PA Act) and other Victorian legislation.

Overview

The Government supports the right of employees to have agreed working hours and maintain work/life balance. This includes not routinely engaging in work related communications, such as emails, telephone calls or other messages, outside of their working hours. Public sector employers should not be routinely contacting employees and expecting their employees to respond outside their working hours, unless there is a reasonable basis to do so.

Right to disconnect

Under the Fair Work Act 2009 (Cth) (FW Act), employees have the right to disengage from work and refrain from engaging in work-related communications and activities, such as emails, telephone calls or other messages, outside of their working hours, unless this refusal to respond is unreasonable. This right applies to work related communications and activities from the employer as well as third parties, such as clients, customers, colleagues, and employees of other organisations.

Consistent with this right, and Government’s support for work/life balance across the public sector, employees should not be expected to routinely perform work outside of the employee’s working hours, other than in an emergency, incident response situation or in relation to genuine welfare matters. Employees must not be penalised or otherwise disadvantaged for refusing to attend to work matters outside of their working hours or agreed ordinary hours under a flexible working arrangement, unless their refusal is unreasonable in the circumstances.

The right to disconnect does not prohibit an employer or third party from contacting or attempting to contact an employee outside of their working hours. However, an employer can only expect an employee to monitor, read or respond to out of hours contact when it is reasonable to do so. It is expected that employers and employees regularly discuss the type of circumstances in which an employee may be reasonably expected to monitor, read or respond to contact outside of work hours so that expectations are clearly understood.

Consistent with the formal workplace right to disconnect under the FW Act and its inclusion in modern awards, all public sector employers must include a right to disconnect clause in their enterprise agreement. A model provision has been provided below to support public sector employers to ensure minimum compliance with the FW Act (see Attachment A).

When an employee’s refusal will be unreasonable

An employee’s refusal to monitor, read or respond to contact will be unreasonable if the contact or attempted contact is required by law. If the contact or attempted contact is not required by law, certain matters must be considered when deciding whether an employee’s refusal is unreasonable, including:

• The reason for the contact (or attempted contact).
• How the contact (or attempted contact) is made and how much disruption it causes the employee.
• Any compensation (monetary or non-monetary) that the employee receives to be available to work when the contact (or attempted contact) is made, or, to work outside their working hours.
• The employee’s role and their level of responsibility.
• The employee’s personal circumstances, including family or caring responsibilities (if known).

Whether an employee’s refusal to monitor, read or respond to contact is unreasonable is an objective test based on what a reasonable person, having access to all the facts, would consider to be appropriate in the circumstances. Section 333M of the FW Act will be considered when determining the reasonableness of an employee’s refusal to accept contact.

Interaction with the general protections regime

The right to disconnect is a ‘workplace right’ for the purpose of the general protections regime in Part 3-1 of the Fair Work Act 2009 (Cth). This means that a person, including an employer, must not take adverse action against an employee because the employee has a right to disconnect, or has exercised, or proposes to exercise the right to disconnect.

Adverse action may include action, or the threat of action, that would disadvantage an employee, such as dismissal or reducing shifts. If an employee believes their employer has contravened the general protections regime, they can make an application to the Fair Work Commission to seek a remedy, such as reinstatement or compensation.

Further Information

For further information and advice employees and public sector union representatives should contact their local Human Resources or People and Culture Unit (or equivalent) of the relevant entity for further assistance in the first instance.

People and Culture Representatives of Public Sector Entities should contact their Portfolio Department for further assistance in the first instance.

People and Culture Representatives of Portfolio Departments should contact their usual IRV portfolio contact for further assistance in the first instance.

Related Policies or Documents

• Flexible Work

Attachment A