The line between professional and private lives continues to become increasingly blurred, especially in today’s fast paced work environment. Small business owners and their employees, in particular, find it harder to switch off from work, what with the need to hustle all the time. But all that is set to change with the new “right to disconnect” law.
What is the Right to Disconnect?
The Right to Disconnect is a new provision under the Fair Work Act that allows eligible employees to refuse to monitor, read, or respond to contact (or attempted contact) from an employer or third party (including clients, suppliers, or staff from other businesses) outside their working hours. This means employees are not required to answer calls, emails, texts, social media, or messaging services once they have clocked out unless doing so is unreasonable.
It took effect on 26 August 2024 for organisations that employ 15 or more people and will apply to small businesses (those with less than 15 employees) from 26 August 2025.
Companies found violating the new provision can face hefty penalties. An employer may be subject to penalties of up to $18,780 for an individual or $93,900 for a corporate body per contravention for contravening a Commission order in relation to the right to disconnect.
When is Contact Reasonable?
When working out whether an employee can refuse contact, the following factors must be considered:
- The reason for the contact
- How the contact is made and how disruptive it is to the employee
- How much the employee is compensated or paid extra for:
- Being available to perform work during the period they’re contacted
- Working additional hours outside their ordinary hours at work
- The employee’s role in the business and level of responsibility
- The employee’s personal circumstances, including family or caring responsibilities
Other matters may also be considered. Ultimately, it will be unreasonable for an employee to refuse to read, monitor, or respond if the contact or attempted contact is required by law.
How the Right to Disconnect Impacts Small Businesses
The Right to Disconnect aims to protect employee well-being, which can lead to increased productivity and work efficiency. However, it also presents various challenges to small businesses, including:
Managing customer expectations.
Managing customer expectations while respecting employees’ right to disconnect can be difficult for businesses where customer service is crucial. Clear communication and setting boundaries with clients are a must to mitigate potential issues.
The need to be flexible.
Some employee roles may require occasional work after hours. It’s important to address these needs in your policy and provide adequate compensation, including time off in lieu, so employees can continue prioritising their mental health, right to work-life balance, and right to disconnect.
Balancing business and employee needs.
Striking the right balance between what your small business requires and your employees’ well-being can be taxing. Review and adjust your policies as needed, so your company and team can thrive.
How to Prepare Your Business for the Right to Disconnect
While the new provision will not take effect for small businesses until the following year, it’s crucial for companies to comply with the legislation to avoid possible legal issues and fines. Here are some steps you can employ in preparation for the right to disconnect:
Assess business operations.
Begin evaluating your business operations so you can identify what constitutes reasonable contact after hours. Distinguish the roles that might require availability beyond work hours and consider how these circumstances will be managed.
Develop clear policies and procedures.
The Right to Disconnect does not prohibit employers from contacting their employees, nor does it prevent employees from contacting one another, including across time zones. To set boundaries and comply with the new provision, it can be helpful to update workplace policies, including setting specific guidelines on what type of communication is classified as non-urgent and how it should be handled.
Educate your staff.
Training and awareness are critical to complying with the Right to Disconnect. Ensure your staff and management understand the new provision and know their rights and obligations under the laws to reduce the risk of disputes. Discuss possible compensation for employees who require reasonable out-of-hours contact and ensure both of you are on the same page about these roles and responsibilities.
Implement technological solutions.
Utilise tools and automation to better manage after-hours communication. For example, email systems that delay delivery until the next business day can help ensure compliance with the new laws.
Review and revise employment contracts.
Ensure employment agreements incorporate the new Right to Disconnect provisions. This may require consulting legal experts to update the terms of employment accurately, especially for employees whose roles might require after-hours communication.
How to Avoid or Resolve Right to Disconnect Issues
The Right to Disconnect opens up possibilities for disputes on whether refusals are unreasonable or not. Should disputes remain unresolved at the workplace level, they can be dealt with by the Fair Work Commission, where the commission can make orders that include orders to stop:
- An employee from refusing contact
- An employer from taking certain actions, or
- An employer from contacting the employee outside of their normal working hours
The orders the Fair Work Commission makes are completely discretionary. They can make orders in favour of the employee or employer. If they make one in favour of the employers, it can be an order that looks at the rationale behind the employee’s right to refuse and whether it was considered unreasonable or not, and then decides whether the employee has to adhere to the employer’s requirements.
To prevent issues from escalating, businesses should consider revolving issues at the workplace level. Thus, it is crucial for employers to understand the legal ramifications and be up to date with the laws, adopt policies and procedures that comply with these new provisions, and update employment contracts to reflect the Right to Disconnect to help mitigate risks.
Ensure your business is compliant and navigate these changes with ease with the help of legal experts. Lazarus Legal can address these legislative requirements so you and your employees can truly embrace and enjoy work-life balance.
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