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What is legal’s role in ensuring adherence to the Right to Disconnect?
With the recently legislated Right to Disconnect set to begin next week, law departments need to be across the looming changes and expectations for workplaces.
Jerome Doraisamy
Greens leader Adam Bandt MP introduced the Fair Work Amendment (Right to Disconnect) Bill 2023 in March last year in a bid to provide workers with the freedom to switch off once they clock off from work.
Opposition Leader Peter Dutton has said that, if elected, a coalition government would move to repeal the new laws.
In the meantime, however, senior law lecturer Dr Gabrielle Golding from the University of Adelaide said on a recent episode of The Lawyers Weekly Show, until such time as FWC sets precedents from test cases, and while there are still “teething issues” in implementation, employers may need to err on the side of caution when it comes to the implementation of the new Right to Disconnect.
As with any legislative or regulatory change, in-house legal teams can and should be supporting other business functions in adhering to said changes. The new Right to Disconnect is no different.
However, as senior lawyers told Lawyers Weekly, for businesses that already have the right processes and policies in place, this shouldn’t present hurdles.
Canon Oceania chief legal counsel David Field, who also serves as the business’s head of human resources, said that “if you’re running a sensible workplace, very little should change”.
“Given the confusion around the concept [of the Right to Disconnect], it’s going to be important to communicate with your employees and managers about what the new right means, and what it doesn’t mean – otherwise, there’s a risk of some unhelpful behaviours based on a misunderstanding of the law,” Field said.
This said, Field noted, “it will be inherent to some roles (e.g. due to the nature of the role or seniority) that some degree of contact outside normal working hours should be expected. There will also be some situations where it’s entirely reasonable to expect any employee to engage after hours – for example, emergencies or situations related to the employer’s duty of care.”
As a result, he advised, “the best policy is that if a communication can wait until the next day, it should”.
Modaxo Traffic Management group legal counsel Emilie Franklin supported this, noting that businesses across the country that already have relevant policies and procedures in place are the ones “that will be better equipped and will have culture already gearing towards these new changes in legislation”.
Other businesses, however, “will need a total cultural revamp” in relation to the Right to Disconnect legislation, Franklin added.
“I know that many legal teams have been working with HR departments to align policies and procedures to comply with the Right to Disconnect legislation, but it will ultimately come down to implementation and practice, changing a culture to be one that is more respectful and understanding of people’s Right to Disconnect,” she said.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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