What does the Right to Disconnect mean for Employers?

The right to disconnect (RTD) was recently introduced as part of the Closing Loopholes No2 legislation.

RTD will allow an employee to reasonably refuse:

a) contact;

b) to monitor, read or respond to communications

from their employer and relevant third parties who contact or attempt to contact an employee after-hours.

The factors set out to help assess “reasonableness” include:

• the reason for the contact

• how the contact is made and the level of disruption it causes the employee

• the extent to which the employee will be compensated (monetary or otherwise) to remain available to perform the work, or for working additional hours

• the nature of the employee's role and their level of responsibility

• the employee's personal circumstances (including family or caring responsibilities)

FWC will be able to make orders similar to the stop bullying and sexual harassment orders currently available and civil penalties will apply for failure to comply with those orders. At this stage don’t worry too much about the hype around the criminal charges that technically may apply as a result of a breach. The Labor government have recognised the problem with their legislation and have promised to fix it. Stay tuned for updates on this.

Our Take

We understand that there has been a lot of negative commentary about this, but we don’t consider that managing RTD should be overly onerous, the end to flexibility or even new for ‘employer of choice‘ organisations.

We think that addressing RTD should already be part of an employer’s strategies to manage psychosocial risks in particular burnout and keeping your employees productive. There are numerous studies which indicate that the mind/body needs to rest and recover and simply working more is counterintuitively unproductive in all but specific emergency type scenarios.

For professional services and management employees the changes are likely to mean very little to the practices that have been in place for many years now. For other employees it is unlikely to cover things like:

• changes to upcoming shifts/rostering

• emergency or WHS issues, or

• designated call out and call back arrangements

The biggest risk we see is that this will become just another basis to create a cause of action in an adverse action claim where there is already an ongoing dispute with an employee particularly where an employee is taking personal leave or is on workers compensation related leave. Mitigate that risk and most of the other concerns should become minor irritations capable of being sorted out with regular discussions between a manager and their direct reports.

Action Items:

• get on the ‘font foot’ with your employees about what RTD IS and IS NOT – one of the biggest mistakes we saw with bullying claims is that employers didn’t spend enough time in explaining what bullying wasn’t and accordingly many employees (and their representatives) ‘stretched’ the meaning

• get on the ‘front foot’ with your clients and customers – don’t worry about ‘losing’ customers or being the ‘first’, all businesses will start to overtly publicise this issue as part of managing their psychosocial risks and in any event they have safety obligations for your workers as well

• educate and train your manages about this topic and the increasing ‘reliance’ some employees may try to use as ‘leverage’ as part of a dispute

• update policy documents to provide some ‘concrete examples' of the usual aspects that exist – don’t allow people to unreasonably ‘stretch’ their interpretations. Control the narrative about what this actually means for your business – not the hype that can be expected in the media

• check your employment contracts to ensure they provide adequate compensation for known RTD situations

Edge Legal

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