To explore this matter, two lawyers from the commercial law firm Hicksons Lawyers – Helen Sexton, senior associate in the firm’s workplace relations, employment, and safety team, and Alexandra Beal, associate within the same team – examine the implications of the RTD legislation on professional development and career progression within the legal sector and what lawyers can mitigate this from occurring.

The impact on career progression

According to Sexton and Beal, the effect of this new right on career progression depends on various factors, including “the employee’s profession, the details of their role, workplace culture, and leadership”.

The two lawyers advised that employers must approach the shift in after-hours communication practices with a proactive mindset. By taking these steps, employers can significantly reduce the risk of facing adverse action claims from employees and avoid substantial financial penalties for non-compliance

“Considering the risk of adverse action claims and hefty penalties for non-compliance, employers should avoid using the right to disconnect as an excuse to limit their employees’ career growth,” the Hicksons lawyers said.

To assist employers in avoiding substantial penalties for non-compliance with the new legislation, Sexton and Beal provided a set of strategies designed to facilitate a proactive adaptation to the RTD, which include:

• “Clearly communicate with employees upfront, including details in their job description, about working hours and the organisational culture.

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• “Ensure that employees who must stay contactable outside of work hours receive appropriate compensation.”

Impacting employee wellbeing

Historically, within the legal profession, employees who were available around the clock were often perceived as more dedicated and were rewarded accordingly.

The two Hicksons lawyers elaborated how “the concept of reasonable/unreasonable work-related contact outside of hours has now been brought into sharper focus through this legislation where it may have previously been taken for granted”.

Despite this, Sexton and Deal also detailed how it introduces challenges for employees who may hesitate to fully exercise their right to disconnect due to concerns about potential adverse effects on their career advancement.

“The issue would likely only become live in a workplace if an employee, or employees, exercise their right to disconnect and others do not,” the pair said.

However, Sexton and Beal noted that implementing the RTD has the potential to enhance employee wellbeing by establishing more explicit boundaries between work and personal life.

“The new Right to Disconnect adds to an employee’s tool kit and could, in some circumstances, offer a legal means for an employee to set boundaries with their employer where they receive unreasonable out-of-hours contact,” the Hicksons lawyers said.

However, the two lawyers articulated how the practical effects of this legislation will take time to understand.

“Understanding what is considered ‘reasonable’ and ‘unreasonable’ for out-of-hours contact in the workplace is a theoretical issue at this point in time. We are unlikely to understand the true impacts of this new legislation for another five to 10 years once it has had the opportunity to be tested in the Fair Work Commission and the courts,” the pair said.

Shifting perceptions of employee availability

Sexton and Beal observed that, although it is too early to draw definitive conclusions, there is a discernible shift in how workplaces perceive employee availability in light of the RTD laws.

The Hicksons Lawyers emphasised that, traditionally, employees who were consistently available beyond standard working hours were often perceived as high achievers and high-performing employees.

“Historically, employees that were available to work at all hours of the day and night were rewarded in their employment more than those who did not make themselves as available,” the pair said.

However, the new focus on work/life balance is gradually changing this perspective.

According to the Hicksons lawyers, employers are progressively acknowledging that high performance is not inherently tied to constant availability. Instead, there is an emerging emphasis on valuing efficiency and productivity within regular working hours over extended periods of availability.

“We are now seeing a greater focus on work/life balance from both an employer and employee perspective, including the idea that if you can get your work done during your work hours in an efficient and effective manner, you should be able to clock off at 5:00pm (or your designated finish time) and enjoy some well-earned personal time,” the pair said.

Communicating without comprising career progression

With the implementation of the RTD laws, employees must navigate the challenge of setting clear boundaries while carefully managing their assertion of this right to avoid any potential negative impact on their career advancement prospects.

Sexton and Beal said: “How an employee and employer communicate with one another will differ in each workplace, as well as how an employer would receive an employee who exercises their right to disconnect.”

The pair advised that the initial step in addressing work-related rights should be to initiate a direct discussion with the employer to seek a mutually acceptable resolution.

“The starting point for exercising most work-related rights is to try and resolve the matter at a workplace level (i.e., the employer and employee discuss it between themselves),” Sexton and Beal said.

“Where this is not possible, the employee may be subject to an Enterprise Agreement or award that includes ‘dispute resolution’ provisions that offer a roadmap for how to resolve the matter.”

In more severe cases, the pair explained, the Commonwealth legislation gives the Fair Work Commission the authority to address and resolve such issues.

“In the worst case, under section 333N of the Fair Work Act 2009 (Cth), the Fair Work Commission has jurisdiction to make an order to stop refusing contact and/or to stop taking certain actions,” the Hicksons lawyers revealed.

Implementing workplace policies

As the RTD laws come into effect, there is growing debate about whether specific workplace policies are needed to prevent employees from being disadvantaged.

Sexton and Beal highlight that while formal policies and procedures can help in some organisations, the nuanced nature of the right to disconnect makes it challenging to create one-size-fits-all solutions.

“Whilst such a policy or procedure may be helpful in some organisations, given it is such a nuanced topic, it may be difficult to cater for how the right to disconnect applies to each employee at each level,” they said.

They added: “What may be more beneficial for an employer and employee to think about is when the Right to Disconnect applies in their workplace, which is really a question about the workplace culture. For example, are employees being contacted outside of work hours for matters that could wait until the employee’s ordinary working hours commence?”

“Is there a culture in the workplace where employees are staying late just because it’s the ‘done thing’? What value does the workplace attribute to availability outside of working hours as opposed to efficiency and quality of work during work hours?”