Right to Disconnect Puts the ‘Off’ in Office Hours.

by Rob Sheppard and Taylah Cooper

_{[IMPORTANT NOTE: this article has been updated as at 06/03/24]}

[Approx 3.5 min read]

The balance between work and life has become an almost continual topic of conversation in the post-Covid SME business world.

With the Fair Work Amendment (Right to Disconnect) Bill 2023 (the ‘amendment’) passing into law, there is now a legal ‘right to disconnect’ for Australian workers established.

This amendment to the Fair Work Act 2009 is an attempt to place clearer boundaries around the perceived power imbalance between employers and team members (and their accompanying psychosocial hazards) – basically acknowledging the importance of rest and disconnection in the workplace for people’s overall wellbeing.

It also now means that if a dispute arises over the out of hours contact, the matter can be escalated to the Fair Work Commission (FWC) who can order either the employer to cease contact or for the employee to stop refusing contact.

Understanding the practical implications of this amendment is crucial in navigating the future of work for many businesses as well as maintaining compliance with an ever-increasing suite of legal obligations to do so.

What is this ‘Right’?

At its core, the amendment is designed to protect team members from the expectation of being always available outside their standard working hours.

It provides for:

1. Employer contact: Employers can still contact employees outside of their standard working hours (especially in emergencies or for genuine welfare concerns). HOWEVER…
2. No obligation to engage: Employees are not required to monitor, read or respond to these work communications outside their work hours if this is deemed unreasonable (this will depend on the circumstances).
3. Defined availability allowance: This compensates employees for being directed by their employer to remain available to work outside of their usual hours.

When talking about this amendment, we feel it is also necessary to reflect on what it is designed to address: psychosocial hazards.

Key dates

The right to disconnect will commence on 26 August 2024 for most employers and 26 August 2025 for small businesses.

What is a ‘psychosocial hazard’?

A psychosocial hazard is an element of work design, management or organisational culture that has the potential to cause psychological or social harm to someone.

These can include excessive job demands, lack of support, bullying and the expectation of always being on.

How rights and hazards interact

The amendment seems to directly address a common psychosocial hazard in businesses: the inability to escape work-related demands outside of official working hours. Especially in a technological age where being connected is but a mobile phone away.

It also effectively compels employers to reconsider job demands and importantly, ensure that workloads are manageable within designated working hours.

The balancing act

The real challenge in applying this amendment lies in finding a balance that respects the right to disconnect while not undermining the flexibility (and the entitlement) that many team members are seeking in their work.

Employers (as the ‘adults in the room’) can do their part by offering guidance and support to team members navigating these changes and ensuring that policies are clear, fair and transparent.

Some practical things you can do

Here are some practical suggestions on how SME business leaders might prepare:

1. Review workloads and expectations. Are workloads manageable within standard working hours and, if not, how can you adjust expectations or deadlines?
2. Update policies. Create clear guidelines – including what constitutes an emergency.
3. Educate your team. You can NEVER overcommunicate when making change – especially with Managers.
4. Monitor (and review). What’s working and what isn’t – and be prepared to adjust policies and practices to better meet the needs of your team.
5. Ensure job descriptions reflect the degree of out of hours contact required for each role.
6. Determine how employees should be compensated for out of hours contact, e.g. providing an on-call allowance or ensuring salaries cover additional hours.
7. Invite employees to give feedback regarding out of hours contact, especially regarding personal and family responsibilities.

Moving forward

The introduction of this Right to Disconnect represents a significant shift in how work is perceived and managed in Australia, especially for SMEs.

While primarily aimed at ensuring team members can rest and recover without the expectation of being constantly available for work, it will require some planning to work alongside the growing demand for flexible working arrangements.

The one thing we can guarantee at this stage is that business leaders cannot afford to ignore this issue (especially once legislated).

[Author Note: this article has been updated when the Bill passed into law- especially with the revised provision for an employer to still contact an employee]

Contact one of our team who will be happy to help you navigate these changes- simply click the link below and reach out to us now.