Right to Disconnect?!

11 February 2024|blog culture industrial-relations psychology-hr whs-blog

You may have heard (actually I am sure you have) the federal government has proposed legislation as an amendment to the Fair Work Act, the ‘right to disconnect’, which may prevent Managers / Business Owners contacting staff outside of hours. Some of the media reports, as per usual, have been a bit dramatic – and there have been a lot of them recently. The proposed legislation would empower the Fair Work Commission to make stop orders if a dispute cannot be resolved at the workplace level.

Do employees have a right to disconnect? Absolutely! But disappointing it has to be because it is legislation. There is one thing I have not been able to find out this and that is the reason why. Sure, they have talked about unpaid overtime because they are able to be contacted around the clock but I haven’t heard real reasons and real examples. I’m not naïve enough to understand that there may very well be cases where some employers may cross the line and the impact on the individual’s personal life, mental health and so on, but does it require legislation and if so, will it change it? Do we need laws to tell us how to treat and manage people? A client once said to me that we were so over regulated and whilst I took that on board and understood his perspective, this conversation really came to mind when I first read about this proposed introduction of legislation. I understand there needs to be some parameters, however, I think we have that with the industrial and workplace health and legislation that already exists, not to mention the psychosocial legislation that was recently introduced. Employers, will lose staff and struggle to recruit staff if they don’t treat their staff right and this includes excessive contact out of hours. I also would have hoped that Managers / Business Owners know themselves they need downtime, or should have some downtime and be respectful that there employees need it too – and most of the time I actually think this is the case. However, at least they are no longer looking at introducing fines for breaches but rather a ‘stop order’, as we all know there are reasonable grounds for contacting employees outside of working or agreed hours. I believe these orders can stop; the employee from ‘unreasonably’ refusing out of hours contact, the employer from contacting a worker out of hours and the employer from taking disciplinary against the employee, due to the employers belief that the refusal is unreasonable and I see this one as being the most troublesome (but lets see).

So, if a Manager or Business Owner contacts a worker after hours repeatedly for example and it is seen to be unreasonable under the circumstances, an employee can apply to the Fair Work Commission for a “stop order”. This is like the stop bullying and stop sexual harassment orders that the Fair Work Commission can issue. If this is the case, like bullying and sexual harassment, if an employee actually gets to the point that they feel like they have to go to Fair Work Commission the relationship has broken down and there are more problems then stopping contact after hours. However, I believe the legislation can also prevent an employee from unreasonable refusal of contact. Lets hope however it all gets dealt with properly at the workplace with no need for anyone to go to the Commission.

Before handing down a ‘stop order’ the Fair Work Commission, I believe, would take into consideration; the reason for out of hours contact, how the contact is made, the level of disruption to the employee, the extent to which an employee is remunerated, any non-monetary compensation the employee may receive, the nature and level of the employees role and the employees caring responsibilities. This is great however in my mind, many Business Owners would already take all this into consideration and communicate and consult with their team. I also think that generally and mostly employees are also reasonable and happy to help and don’t mind being contacted out of hours so again, provided it is not excessive do we really need to legislate it, for possibly the minority?

If the legislation comes into effect it will do so six months and 1 day after the legislation receives royal assent however small businesses will have an additional 12 months and therefore time to prepare. Business can be prepared by; educating and encouraging Managers to respect employees own time and boundaries they have, educate Managers to ensure they don’t discipline an employee for not responding to contact (taking into consideration the legislation), educate employees on the issue, encouraging them to have down time or time off line themselves, leave the sending and responding to non-urgent work related calls, emails or texts until the next business day, discuss any changes the employer is taking with regard to things outside of hours and better still consult with them on any changes moving forward and Managers and Business Owners to time schedule any emails to be sent during working hours – I know plenty of Mangers & Business Owners that already do this. Employers should not abuse employees in any way including their acceptance to being contacted out of working hours, but I think both parties should be and generally are reasonable and the government should butt out. However, from what I have seen so far the legislation seems fair enough but really has to be considered on a business to business basis and lets see how it plays out in reality.

If you would like to discuss this further and how it may impact your workplace and what you need to do please contact us here. We will keep in touch with you as this progresses.

Leisa Messer BBus(HRM), GradDipIR; FCPHR
Managing Director | HR Strategist
leisa.messer@hrbd.com.au
07 3890 2066
www.hrbd.com.au