Right to Disconnect

Impact on Employers and the Real Estate Industry

Right to Disconnect

The “right to disconnect” refers to a new workplace right for employees “to disconnect” and not respond to their employer after or outside work hours. Specifically, the rights for employees include: 

  • 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 the refusal is unreasonable; and 
  • an employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable. 

The “right to disconnect” laws, which would legally prevent employers from contacting their staff outside of office hours, will require another vote after the Government failed to include the amendment in that employers will not be found to be criminally liable if they contravene a FWC right to disconnect order.

Several factors must be considered when determining whether an employee’s refusal is unreasonable. This includes, but is not necessarily limited to:

  • the reason for the contact
  • whether the employee is compensated for:
  • being available in the period when contact is made or attempted, or
  • working additional hours outside their ordinary hours of work
  • the nature of the employee’s role and level of responsibility
  • the employee’s personal circumstances, including family or caring responsibilities.

Under the new laws, modern awards will be required to have a right to disconnect term, in addition to a free-standing right to disconnect. The Fair Work Commission will be empowered to issue stop orders, similar to stop bullying and stop sexual harassment orders.

How this will Affect the Real Estate Industry

All awards will be required to include a ‘right to disconnect term’ by 26 August 2024 for non-small business employers, and from 26 August 2025 for small business employers. This means that specific rules will be added to awards to explain how this new right would apply to different industries and occupations.

For WA, the changes could mean restrictions to operations for businesses with staff in the Eastern States – for example, employees are unable to contact WA colleagues until after midday during daylight saving time, while west coast workers would have to cut off interstate business at 2pm WST.

Businesses with global operations will also be impacted if employers cannot connect with employees out of regular working hours.

The change could also result in lost business if employees refuse to take urgent calls on a critical matter. Or it could have an adverse impact in the case of a safety incident if a worker is contacted to manage a life-threatening emergency.

Businesses that have working from home arrangements with staff may need to consider negotiating separate flexible working arrangements to protect them from right to disconnect claims.

Similarly, policies and procedures may need to be developed to allow employees to receive at least some information to determine if the contact requires an after-hours response. For example, the matter is not urgent unless a phone call or text message is sent.

An example of an issue that might arise from the new “right to disconnect” provisions, in a real estate context, relevantly relate to property managers required to attend to emergencies at properties. Our view is that this would not be in breach of the new “right to disconnect” provisions as the nature of their role would mean that this is not only reasonable but required.

Another example would be sales representatives being required to urgently pass on / respond to offers. As long as the expectation is not unreasonable then we do not consider there would be a significant risk of breaching the “right to disconnect” provisions.

With the right to disconnect change commencing 26 August 2024, we recommend employers take proactive measures in this regard, which could include, but not necessarily be limited to:

  1. reviewing employment contracts, policies and procedures now;
  2. determining employees’ work activities outside agreed-upon working hours you can also create training programs to ensure staff and people leaders and managers comply with the law;
  3. assessing how the right to disconnect will impact your organisation, including:
    1. what contact may be reasonable in particular circumstances;
    2. what measures you can take to avoid contacting your staff outside ordinary working hours where it is unlikely to be reasonable
  4. having a suitably worded policy and/or clauses in employment documents that addresses the “right to disconnect” provisions which effectively mitigates these associated risks.

One potential strategy could be to include an amount in an employee’s remuneration where it is likely that employee will be required to be contactable or perform work activities outside agreed-upon working hours. This could be implemented by the insertion of a clause in the relevant employees employment contract, to the effect of:

Your Remuneration also includes an amount to account for where you may be required to monitor, read or respond to contact, or attempted contact, from the Company or a third party in connection with your employment, outside of your working hours, where it is reasonable for you to do so.”

Written By Michael Franzone – Associate, Workplace Relations

CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

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