Employers May Face Criminal Charges for Contacting Employees After Hours

A law that establishes the legal right for employees to stop employers from contacting them after hours has been approved by the New South Wales parliament.

The proposed legislation currently foreshadows the potential of criminal charges being brought against employers who fall foul of the rules, although this is currently being debated in the parliament and the final form of the law is yet to be settled.

Here’s an outline of the current state of the proposal.

What are the National Employment Standards?

The National Employment Standards  are the minimum employment entitlements that have to be provided to all employees in Australia.

The current Standards include employee rights as:

• Maximum weekly hours;
• Requests for flexible working arrangements;
• Offers and requests to convert from casual to permanent employment;
• Parental leave and related entitlements;
• Annual leave;
• Personal/carer’s leave, compassionate leave and family and domestic violence leave;
• Community service leave;
• Long service leave;
• Public holidays;
• Superannuation contributions;
• Notice of termination and redundancy pay; and
• Requiring the provision of the Fair Work Information Statement (the FWIS) and Casual Employment Information Statement.

If an employer were to breach the National Employment Standards an affected person could apply to a Court for an order for a financial penalty against the employer and receive financial compensation. These actions can also be taken by the Fair Work Ombudsman on behalf of impacted employees.

What is the new rights of employees to ‘disconnect’?

The new right to disconnect was included as part of a Greens amendment to the Labor government’s so-called ‘Closing Loopholes’ bill which contained a number of different legislative changes.

The primary rule is that an employer must not contact an employee outside regular hours of employment unless it is for an emergency purpose.

The Greens amendment additionally provides that an employee:

• may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.
•  may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.

In determining whether the contact is ‘unreasonable’ the following may be taken into account:

• the reason for the contact;
• how the contact is made and the level of disruption the contact causes the employee;
• the extent to which the employee is compensated:
  • to remain available to perform work during the period in which the contact is made; or
  • for working additional hours outside of the employee’s ordinary hours of work;
• the nature of the employee’s role and level of responsibility; and

• the employee’s personal circumstances, including family or caring responsibilities.

Stop orders

Employees may apply for a stop order to the Fair Work Commission to formally prevent employers from contacting the employee after hours.

Under the current proposal, breaches of these orders will carry hefty criminal penalties, including fines of up to $18000.

The new right will come into effect in 6 months time for larger employers, and 12 months time for small businesses.

More questions than answers

The new law does, however, raise a number of questions which do not seem to have been fully resolved, such as: What counts as an emergency? Can an employer respond to an employee who has contacted them after hours and, if so, when should the employer cease responding? What about jobs such as, form example, that of criminal defence lawyers whereby people are often arrested and need assistance after hours – does this count as an emergency situation?

It is hoped the final version of the law will help to clarify these and other questions.