There's been a lot of misconception around the new bill, says ABLA lawyer
As of August 26th 2024, employees will enjoy the ‘right to disconnect’ outside of their working hours. And while unions are understandably happy with the ruling, employers and smaller organizations are anxious about what this could mean for their operations.
But how much is this new legislation really going to change the labour landscape? And do employers have cause to worry? Speaking to HRD, Luis Izzo, Managing Director at Australian Business Lawyers & Advisors (ABLA), says there’s not too much change to fret about – yet.
“There’s been a lot of misconception around this new legislation,” explains Izzo. “Essentially, it’s an ability for employees to refuse to read or respond to communications outside of their working hours - unless that refusal is unreasonable. What's important to understand is that it’s not a prohibition on employers contacting employees outside of working hours. People can still reach out, message, contact, email, send communications at any time - it's about whether the employee is required to respond to that contact or not.”
Unlike similar ‘right to disconnect’ laws in France and Canada, employers can still contact their people whenever they like. Ultimately, the Australian law just delays the response time – it doesn’t make the message go away entirely.
“It's somewhat different to some other global jurisdictions where this has been introduced,” adds Izzo. “In some of those jurisdictions, there's prohibitions on contacting people. When it was first proposed here, there were discussions that it may have some of those features. But ultimately, the actual bill that was tabulated in Parliament was only about responding to contact – so it’s much more workable and it's much less of an issue for employers.”
However, that’s not to say the new legislation will be a breeze for organizations – as Izzo says, there are still some pain points for shift work environments. In industries like transport, where roster times can change frequently, employees may need to be called in early or have their finish times adjusted.
“If employees have a right not to respond to those types of roster or shift changes, that can be very problematic,” adds Izzo. “It raises the question of how an employer can ensure that employees will turn up for shifts if they can't get a response.”
There will likely be debates over whether refusals to respond are reasonable, especially for shift workers who are paid allowances and given extra benefits.
“In some contexts, it’s incumbent on them to be available,” Izzo explains. “This is where we might see interruptions to operations or service failures if the new laws are not handled properly by employers or practically and effectively implemented by Courts and the Fair Work Commission.”
For shift workers, it’s crucial that employers clearly outline any benefits provided in exchange for flexibility in responding to communications outside of working hours. This clarity will help demonstrate that any need for responses outside of regular hours is reasonable.
“That should significantly help demonstrate that any kind of need for people to respond outside of hours is reasonable in that circumstance,” says Izzo.
Outside of shift work, the law is unlikely to have a huge impact on day-to-day behaviour. However, questions about the seniority of roles bring another layer of complexity. For highly compensated roles, there is often an unwritten expectation that employees should be available outside of normal hours.
“One of the callouts in the legislation is the extent to which employees are compensated to remain available for contracts outside of their work hours,” Izzo tells HRD. “Employers should explicitly include this compensation for availability in their remuneration structures to bolster their argument that refusing to respond outside of work hours is unreasonable. It’s a factor not only relevant generally in the test of reasonableness but actually called out in the legislation.”
The Fair Work Commission will consider this factor in any disputes. Practically, the more senior the position, the less likely it is that an employee can ignore all communications outside of work hours.
“The more senior they get, the more difficult it will be to refuse all out-of-hours contact” adds Izzo.
For smaller businesses, however, the new legislation is yet another burden to bear. Family-run firms and SMEs are still contingent to the ‘right to disconnect’, upcoming casual reforms and a string of other big changes. And while smaller businesses will have the law deferred for one year (deadline being 26 August 2025), it’s still on the horizon.
“Small businesses are based a lot more upon relationships than rules, and the introduction of the new raft of laws may lead to more conflict,” Izzo explains. “There’s only so much bandwidth these businesses have to comply with such a complex web of laws that now apply to them.”
The law is part of a broader suite of new regulations affecting small businesses. These include casual rulings, independent contractor laws, and labour arrangement reforms.
“It is unlikely small businesses will be able to keep up with the pace of reform and the complexity,” says Izzo. “For the vast majority of employers, this is nothing to be worried about. The law is unlikely to affect day-to-day relationships with employees.”
However, for employers engaging shift workers with variable rosters, where last-minute contact is necessary, it’s a different story.
“They need to ensure that their remuneration arrangements are clear,” warns Izzo.
While the ‘right to disconnect’ aims to reduce work-related stress outside of hours, its implementation must be practical, especially for shift workers. Izzo stresses the importance of handling these rights sensitively to avoid systemic failures in operations.
“There’s really going to be an impetus on the Fair Work Commission and any courts hearing these disputes,” he tells HRD. “These laws seem to have had their goal focusing on people not working or being stressed about work outside of hours - the laws are not necessarily about contact to change when work is going to occur. That's where employers need to be concerned - that's where we’re going to be watching very closely to see whether the laws are applied practically in that space.”
