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‘Teething issues’ for Right to Disconnect highlight need for employer caution
As the Right to Disconnect inches closer and closer to coming into effect, employers have mixed emotions about implementation and how they’re going to navigate it.
Kace O'Neill
Speaking recently on The Lawyers Weekly Show, Dr Gabrielle Golding, a senior lecturer in law at the University of Adelaide, discussed the upcoming Right to Disconnect legislation that is set to begin in just under four weeks.
“So, from the 26th of August this year, for employers that employ 15 employees or more who are covered by modern awards, they will have a Right to Disconnect. 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 that refusal is unreasonable,” Golding said.
“The Right to Disconnect doesn’t just apply to communications between an employee and an employer but also an employee and a third party. So, let’s say someone’s working in a client service industry, it could be between the employee and whoever the client is that they’re able to actually disconnect as well from that communication.”
Golding spoke about how the communication must be reasonable if it occurs outside of the employee’s usual working hours.
“The reason for the contact or the attempted contact, how the contact is made, and the level of disruption that it causes to an employee, and the extent to which an employee is compensated for that time [determines if it’s reasonable],” she said.
“So, if they’re already paid an on-call allowance for the time that they are being contacted, it’s perfectly reasonable in that circumstance for them to be contacted outside what would normally be their working hours.”
“Whether they have family or caring responsibilities outside of work and how that impacts them in terms of being contacted. So, it’s really a range of factors that’ll be looked at in determining reasonableness.”
It’s going to be somewhat of a tricky period for businesses in terms of adjusting to not being able to contact their employees outside of working hours, unless it’s reasonable. There is some trepidation among employers, but once they are past that initial adapting period, it should become the new normal.
“I think it is a bit of mixed [feelings], I’d say anecdotally and particularly so for those larger employers with dedicated HR teams, that by and large, they’re quite well prepared for this. However, even just this week, despite the right being six weeks away from commencing operation, I am still speaking with employers on the ground who have been taken a little bit by surprise by the right’s impending introduction,” Golding said.
“So, I think there will be some teething issues; there will be some getting used to how this is going to operate in practice and how employers can best facilitate the work environment under this new right.”
There remain remnants of the previous arguments that were made in Parliament based on the legislation and how it could potentially impact business outcomes going forward. Statistics from the Australian Bureau of Statistics show that the grand total figure of unpaid work outside of normal working hours stacks up to $131 billion over a year.
The fear is that less work will be done due to the hours being lost due to the legislation.
“The issue, if we introduce a Right to Disconnect, does that mean that less work is going to end up being done and that business will suffer? I would say that the literature and the research [don’t] necessarily support that view,” Golding said.
“The reason I say that is because when we look at studies conducted around the four-day workweek, in particular, where work hours are compressed, we see that actually employees are exceedingly more productive than if they were working longer hours over, say, a five-day workweek. So, I would say that there are actually benefits to productivity if we are adhering to a Right to Disconnect.”
With the legislation right around the corner, businesses and organisations should be well into the strategic planning for how they’re going to adapt to the changes, especially if they are a company that often operates over those scheduled hours.
