The end of out of hours contact: What does the right to disconnect mean for ECEC?

Important legislative changes are coming into effect which relate to when and how early childhood education and care (ECEC) leaders can contact their employees outside of working hours. 

 

The Fair Work Commission is required to insert a right to disconnect term into all modern awards by 26 August 2024. The Commission is also required to make written guidelines about how the right to disconnect will operate.

 

The changes are based on laws which were passed by Parliament in February 2024, and will become ‘live’ in August. In the piece below we explore the changes, what they mean for ECEC employees, and what leaders need to know in order to remain compliant with the legislation. 

 

Why have the changes been introduced?

 

With the advent of technology which allows employees to be ‘always on’ – whether they are sick, on leave, or enjoying personal time – has come a sense of needing to be available to attend to work issues at any time. 

 

In an ECEC context this may look like responding to parent concerns, adjusting rosters to accommodate for last minute changes to availability, or dealing with serious incidents which must be attended to within a certain timeframe. 

 

To respond to increasing concerns about the wellbeing of employees, the Government has introduced laws which are designed to protect the personal time of employees and allow them the opportunity to refresh, and to safeguard their mental and physical health. 

 

What are the new rules? 

 

Under the changes, which come into effect on 26 August 2024 (for larger approved providers) and 26 August 2025 (for smaller approved providers) the Fair Work Act will give most employees to the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of the working hours – unless such refusal is unreasonable.

 

The right also extends to contact by third parties where the contact relates to work.

 

The Right to Disconnect laws apply to most Australian employees and businesses, including those in the ECEC sector. 

 

Defining reasonable

 

A core element of the legislative change is that there are some occasions when contact out of hours can be seen as reasonable. The Fair Work Act provides some factors to help employers to consider when contact is reasonable, including: 

 

• The reason for the contact
• The method of contact and the level of disruption it causes (for example, an email is less disruptive than an SMS or phone call).
• Whether the employee is paid to be available, or is paid for additional hours worked.
• The nature of the role and the level of responsibility held by the employee.
• The employees’ personal circumstances (including family or caring responsibilities).

 

In an ECEC context, it may be reasonable for an employer to contact an employee after hours if the employee had been with a child who had sustained a serious injury, and the employer needed information to pass on to medical staff, for example. 

 

It may also be considered reasonable for an ECEC leader to email an employee outside of hours to advise of a change to the roster for the next day which would impact the people they are working with, or the structure and routine of the following day, in the event that the leader would not be able to pass the information on during working hours. 

 

How to use the Right to Disconnect

 

As with many aspects of working in the ECEC sector, the correct ‘first step’ in raising concerns about being contacted after hours is to speak with your employer, and learn more about the reasons behind the contact. 

 

In the event that these concerns are not addressed, it is reasonable for an employee to raise the new Right to Disconnect rules with an employer. Under the new legislation, employees have the right to refuse to perform certain tasks after hours including reading or responding to emails, text messages or phone calls, unless such refusal is unreasonable.

 

If the issue is unable to be resolved at the workplace level an application can be made to the Fair Work Commission, who can make an order to the employer to comply with the Right to Disconnect legislation. 

 

What might happen if I ignore an after hours attempt at contact?

 

It is important to note that while the new Right to Disconnect legislation will support employees to be better informed and protected, the legislation is limited to circumstances where the refusal is reasonable. 

 

Employees may still be subject to disciplinary action if they refuse a reasonable request from their employer. 

 

What’s next? 

 

The Commission has started the process to create the right to disconnect terms and guidelines and will hold a consultation hearing at 10:00 am on Wednesday, 19 June 2024, in person in Melbourne.

 

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