With the Right to Disconnect legislation set to be implemented in just a few months, an expert clarifies common misconceptions about its impact on businesses. Starting 26 August this year, a new Right to Disconnect entitlement will be added to the Fair Work Act. For small businesses (those with fewer than 15 employees), the legislation will take effect in August 2025. However, other businesses have only a few months left to ensure compliance.
Dr. Gabrielle Golding, Senior Lecturer at Adelaide Law School, dispelled some myths about this new legislation and provide steps employers can take to prepare.
Myth #1: Employers Can No Longer Contact Employees After Official Work Hours
A common misconception is that employers will be prohibited from contacting employees outside of work hours. This is not entirely accurate. While it is best practice to avoid sending emails late at night, the new rule does not penalise employers for accidentally sending an email outside of normal working hours.
“There’s no penalty for sending an email out of normal working hours. It just means the employee has the right not to respond and cannot be penalised for exercising that right,” says Dr. Golding.
Employers can still exercise "managerial prerogative," meaning there are instances where it is reasonable to contact employees outside of hours and expect a response, such as when employees are on call or have specific provisions in their contracts.
Employers may also contact employees out of hours for urgent operational notices, such as changes to shift times or office closures. The legislation outlines factors to consider when determining reasonableness.
Myth #2: This Rule Only Applies to Employers
The Right to Disconnect also covers communication from third parties, such as clients or customers. Employees have the same right to disconnect from these communications outside their normal working hours.
Employers should inform clients and customers about the new legislation, especially those working with global clients who may not be aware of the changes in Australia.
Myth #3: Only Employees Can Raise a Dispute
Both employees and employers can raise disputes under this legislation. Employees might raise concerns about not being afforded the Right to Disconnect or being treated adversely for exercising it. Employers might dispute an employee's incorrect exercise of the Right to Disconnect, such as ignoring calls when on call.
The resolution process starts with a conversation between the employer and employee. If unresolved, either party can apply for a stop order from the Fair Work Commission (FWC). If a stop order is granted and the behavior continues, civil penalties for employers or disciplinary actions for employees may follow.
The maximum penalty for employers breaching a stop order is $18,784 per contravention for individuals and $93,900 per contravention for companies. Employees can also file applications under Work Health and Safety legislation or discrimination laws if they are treated differently for exercising their Right to Disconnect.
Myth #4: It Will End Flexibility
Some believe the legislation will hinder flexible work practices. However, Dr. Golding argues that the Right to Disconnect can coexist with flexible working arrangements.
The legislation does not restrict employees from working during their preferred hours; it simply encourages using tools like the 'schedule message' function to avoid interrupting others' downtime. Research suggests that allowing employees to disconnect can increase productivity.
How Can Your Business Prepare?
Dr. Golding recommends starting with an audit of current work hours and communication needs. Understand your employees' normal working hours and create a policy document around the Right to Disconnect. This will clarify what exercising this right means and prevent potential misunderstandings.
Other steps include:
Creating processes for on-call allowances and overtime pay for necessary out-of-hours contact.
Identifying reasonable out-of-hours communications, such as shift changes or work location updates.
Ensuring managers lead by example by modeling appropriate communication behaviors and outlining guidelines to clients and customers.
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