Practical steps that can help employers with the Right to Disconnect

As Australia continues to navigate the recent implementation of the Closing Loopholes legislation, employers are now having to make legitimate adjustments to workplace law changes, such as the Right to Disconnect.

The Right to Disconnect is now starting to sink into reality for a number of Australian businesses that may have been somewhat dismissive of the changes before they were properly implemented. With it now being the benchmark, a dismissive mentality isn’t going to cut it, as it will only open up your business to unnecessary risks.

Instead, businesses should have clear-cut practical strategies for these workplace changes and how they can make it work for their business. Michael Byrnes, employment law partner from Sydney-based firm Swaab, has offered some insight into how employers can navigate this new terrain.

Dis­cuss the issue with employ­ees. “Ensure employ­ees know the scope of the right (lest they hold the mis­tak­en but com­mon­ly held belief it is an absolute pro­hi­bi­tion on out-of-hours con­tact apply­ing to all employ­ees) and gain an under­stand­ing of the posi­tion of indi­vid­ual employ­ees on out of hours con­tact from cus­tomers or clients,” Byrnes said.

“This can pre­vent both the busi­ness and its cus­tomers or clients being blind­sided by a non-response or a refusal. Of course, in dis­cussing the Right to Dis­con­nect with staff, employ­ers need to be care­ful not to mis­rep­re­sent the scope of the right or threat­en any adverse action if an employ­ee pro­pos­es to exer­cise the right. It would be pru­dent for any mes­sages from employ­ers to be care­ful­ly script­ed to ensure accu­rate infor­ma­tion is giv­en to employ­ees.”

An open and honest conversation that is clear on the guidelines of the right is crucial if a business wants to avoid potential pitfalls. Having an employer-versus-employee approach to the right now that it is in the workplace simply won’t work, which is why that communication is so imperative.

“Such a dis­cus­sion can also be an oppor­tu­ni­ty for employ­ers to set expec­ta­tions with employ­ees, par­tic­u­lar­ly if the view of the employ­er is that a refusal of cer­tain con­tact would, in the case of that employ­ee, be unrea­son­able under the act,” Byrnes said.

Adopt com­mu­ni­ca­tion pro­to­cols. “Where appro­pri­ate, cus­tomers or clients who seek to make out-of-hours con­tact with an employ­ee where it would not be unrea­son­able for the employ­ee to refuse the con­tact should be sent a specif­i­cal­ly craft­ed mes­sage (which may need to be an auto­mat­ed text mes­sage or part of a voice mail mes­sage) that the employ­ee they are seek­ing to con­tact will not be in a posi­tion to assist them until work­ing hours (which should be spec­i­fied),” Byrnes said.

“Such a mes­sage should ide­al­ly also form part of the email sign-off for employ­ees who elect to exer­cise the right. It would assist in min­imis­ing the prospect of any brusque or inap­pro­pri­ate­ly rude response from an employ­ee to a cus­tomer or client.”

Byrnes suggests a smart process that can dispel any hostility from arising, and it also can be an avenue for employers to avoid any legal ramifications. At the same time, it still gives that employee the opportunity to respond if they deem it necessary.

“It will be eas­i­er to man­date these mea­sures on a device pro­vid­ed by the employ­er rather than a per­son­al device the employ­ee uses pur­suant to a bring-your-own-device (BYOD) pol­i­cy,” Byrnes said.

“Of course, if an employ­er is seek­ing to argue that a refusal of out-of-hours con­tact is unrea­son­able but has a BYOD pol­i­cy, be ready for the argu­ment from an employ­ee in the event of a dis­pute that they’re appar­ent­ly impor­tant enough to need to respond to cus­tomers and clients after hours on behalf of the employ­er but not impor­tant enough to be pro­vid­ed with a work device to do it. Some employ­ers may not like this, but I sus­pect such an argu­ment would like­ly find favour with the [FWC].”

Job descrip­tions and employ­ment contracts. “Some of the fac­tors the FWC must con­sid­er under the act in deter­min­ing whether a refusal of con­tact by an employ­ee is unrea­son­able rel­e­vant­ly include: (i) the nature of the employ­ee’s role and lev­el of respon­si­bil­i­ty, and (ii) whether the employ­ee is com­pen­sat­ed to per­form work dur­ing the peri­od in which con­tact or attempt­ed con­tact is made or for work­ing addi­tion­al hours out­side the employ­ee’s ordi­nary hours of work,” Byrnes said.

“If there is an expec­ta­tion that an employ­ee will respond and deal with cus­tomers and clients out­side work­ing hours, then these expec­ta­tions should ide­al­ly be made clear in both the employ­ment con­tract and posi­tion descrip­tion for the role.”

Once again, communication, paired with clear boundaries and expectations, must be outlined early between employers and their employees for this right.

“The remu­ner­a­tion payable to the employ­ee should also be expressed to be part­ly in con­sid­er­a­tion for being avail­able to respond and deal with such con­tact. As stat­ed above, con­sid­er whether the appli­ca­tion of BYOD poli­cies might run counter to an argu­ment the employ­er may want to run that a refusal from cer­tain employ­ees is unreasonable,” said Byrnes.

Set expec­ta­tions with cus­tomers and clients. “If cus­tomers and clients are used to deal­ing with cer­tain employ­ees who are going to (not unrea­son­ably) refuse con­tact, then the busi­ness may want to have a dis­cus­sion with the cus­tomer or client either adjust­ing their after-hours ser­vice expec­ta­tions or ask­ing them to adopt alter­ative arrange­ments for con­tact with the busi­ness at those times,” Byrnes said.