The Australian Government’s right to disconnect laws have been introduced to protect employees’ work-life balance. While the provisions don’t apply to small businesses until 26 August 2025, some business owners and employees may be wondering how it may affect them.
Australia’s workplace landscape has undergone significant changes recently, with the Federal Government passing a series of amendments to the Fair Work Act over the past two years in what is known as the”Closing Loopholes” legislative package.
Among the latest developments, the introduction of the "right to disconnect" for employees has sparked considerable discussion.
The new provision, set to take effect on August 26, 2024 for non-small business employers, and August 26, 2025 for small business employers, marks a fundamental shift in how work-life balance is managed in Australia.
We explain it means for small businesses so that owners and operators can plan ahead and communicate to their employees ahead of the implementation.
What is the Right to Disconnect?
The right to disconnect is a new provision under the Fair Work Act that allows employees to refuse to engage in work-related communication outside of their regular working hours, unless their refusal would be unreasonable.
Contact could include any form of communication that engages with employees, such as phone calls, emails, text messages, and social media. The timing applies to any contact or attempted contact outside an employee’s working hours.
Specifically, employees will have the right to:
- Refuse to monitor, read, or respond to any work-related contact from their employer outside of their agreed working hours unless such refusal is deemed unreasonable.
- Refuse to monitor, read, or respond to work-related contact from third parties (such as clients or business partners) outside their working hours, again unless refusal is unreasonable.
This right will be formally embedded in all modern awards by August 2024, ensuring that it applies across various industries and occupations.
How do you determine if contact is reasonable?
To determine what constitutes reasonable contact, small business employers should take into account:
- The reason for contact – is it necessary or urgent? For example a manager may contact an employee:
- To notify them of urgent office repairs that would prevent them from attending the workplace.
- To recall them to duty when there’s a crisis unfolding and the employee’s role is critical to the early response.
- It may also be reasonable to notify an employee of rostering changes, conduct a welfare check, and confirm return-to-work arrangement. However, they shouldn’t be expected to monitor or respond to queries about shift availability or other non-urgent matters outside of working hours.
How the contact is made counts
If you must contact an employee outside of work hours, there are some guidelines to help. When making reasonable contact outside of work hours, you should:
- Choose the least intrusive method.
- Minimise the disruption the contact causes to the employee – consider the length of time required to respond to the contact.
- Consider the extent to which the employee is compensated to remain available to perform work during the period in which the contact or attempted contact is made.
- Take into account the employee’s role and level of responsibility – managers should avoid contacting junior employees outside of their ordinary hours unless it is an emergency.
- Also think about the employee’s personal circumstances, such as family or caring responsibilities.
Practical implications for small businesses
The introduction of the right to disconnect may create several challenges, particularly for small businesses that often operate on tight schedules and rely on flexible working arrangements. Some scenarios include:
- Interstate and global operations: For businesses with operations or clients in different time zones, particularly in the Eastern States or internationally, the right to disconnect could complicate communication. For example, during daylight saving time, Western Australian employees may not be reachable by colleagues in the Eastern States until after midday, potentially causing delays.
- Emergencies and critical matters: If an employee refuses to respond to an emergency outside of working hours, it could lead to significant operational risks, especially in sectors where safety is paramount.
- Working from home and flexibility: Businesses with staff working from home might need to renegotiate flexible working arrangements to avoid potential conflicts with the right to disconnect. For example, automated email systems might need adjusting to ensure messages are only delivered during working hours.
Preparing your business for the right to disconnect
While the commencement date for small business is a year away, it’s essential to start preparing your business for these changes. Here are some practical steps you can take:
- Assess reasonable contact: Begin assessing your business operations to determine what constitutes reasonable contact after hours. For instance, you might consider if some roles need availability beyond regular hours and how these circumstances will be managed.
- Develop clear policies and procedures: Create or update your workplace policies to clearly define what constitutes "unreasonable" contact outside of work hours. This might include setting specific guidelines on what type of communication is considered non-urgent and how it should be handled.
- Training and awareness: Educate your staff and management teams about the right to disconnect. Training can help ensure everyone understands their rights and obligations under the new laws, reducing the risk of disputes. If an employee is in a role where there may be reasonable out of hours contact, discuss this with them and consider how they are compensated for this.
- Implement technological solutions: Consider using technology to manage after-hours communication better. For instance, email systems that delay delivery until the next working day can help ensure compliance with the new laws.
- Review and update employment contracts: Ensure that your employment contracts reflect the new right to disconnect provisions. This might involve legal consultation to accurately update the terms of employment, particularly for employees who may have roles requiring after-hours contact.
Navigating potential challenges
While the right to disconnect aims to promote a healthier work-life balance, it’s crucial to recognise the potential challenges it may pose. The Fair Work Commission will play a significant role in interpreting what constitutes "unreasonable" contact, considering factors like the reason for contact, the employee’s role, and their personal circumstances, such as family responsibilities.
Disputes may arise, and in such cases, businesses should attempt to resolve issues at the workplace level. If resolution isn’t possible, the Fair Work Commission can step in, either by issuing a stop order or by holding a conference to mediate the dispute.
Looking ahead
As a small business owner in Western Australia, understanding and preparing for the right to disconnect and other legislative changes affecting your employees is important.
While the full impact of this legislation will become clearer over time, taking proactive steps now can help mitigate risks, preserve employee relations and ensure your business is compliant.
