How SMBs can make sense of Right to Disconnect laws

The Right to Disconnect laws now in place for small businesses are sparking plenty of discussion, writes Stephen Roebuck.

Among such discourse is consternation over whether the laws constitute another disadvantage for business owners, adding another layer of mounting red tape, or do employers have a say when circumstances call for additional manpower outside of working hours? What exactly constitutes “working hours” for employees whose schedules are not tied to the traditional nine-to-five? Can employees really ghost their employers?

These are important and real questions that are being debated online. Yet, our advice team has seen a surprisingly low number of initial inquiries on the Right to Disconnect laws, from the 24,000 small businesses we support.

There could be several reasons for this – perhaps many small-business owners are taking a wait-and-see approach, or they may not yet fully understand the practical impact on their workplace. Others might believe they already provide a good work/life balance and therefore assume the law does not apply to them. Or, in many cases, the business owners simply have too much to juggle, and this new law is not seen as a priority for their day-to-day operation.

Whatever the reason, the reality is that the law is already in effect and applies to all businesses, which means the onus is now on small-business owners to understand what it really entails. For many, this is particularly challenging as most do not have a dedicated HR function. Unlike larger organisations, owners and managers are often left to interpret new laws themselves while juggling day-to-day operations. This can make legislation like the Right to Disconnect feel more daunting than it really is.

Dispelling myths

The Right to Disconnect is not as black-and-white as some headlines might suggest, nor is it a one-size-fits-all rule.

A common myth is that the law bans employers from contacting staff outside of standard working hours altogether, resulting in employers now being afraid to call workers after they clock off, while employees are free to ignore their boss indefinitely or lodge complaints at the first missed call. In reality, the law is more measured.

Employees have the right to refuse to monitor, read, or respond to contact from their employers if it is reasonable to do so. The word “reasonable” is central here because legislation recognises that there are times when after-hours contact is necessary to keep businesses operating. For example, an IT technician responding to a system outage, or an emergency service worker rostered on calls, may still be expected to answer. Requirements can vary between industries, which is why it is always best to double-check with the award or agreement that applies to employees.

Another misconception is that employees on call or completing overtime no longer need to answer calls. The truth is, they do. Employees who are rostered on call or undertaking overtime are still considered to be working or are in readiness to work, and they remain an essential part of many industries, from hospitals and emergency services through to manufacturing. If contacted during these times, they are both obliged and typically compensated accordingly.

Then there is the question of non-traditional working hours of nine-to-five. The law does not ban communication outside of these hours. If a worker’s roster is in the evening, then being contacted during that time about shifts or work-related matters is entirely acceptable. Communication outside of work hours may also be fine, provided it is reasonable and proportionate to the circumstances.

What it means in practice for small businesses

Some business owners worry the new laws will trigger expensive disputes or force them to invest in new systems. The reality for small businesses is usually more straightforward. Taking early steps to set boundaries and put policies in writing can go a long way to reducing risk and giving both employers and employees clarity. Small businesses could also survey employees’ out-of-hours contact preferences and use digital platforms to formalise out-of-hours contact.

The law is ultimately about creating a fair framework that balances respect for employees’ personal time with the realities of running a business. If an employer repeatedly makes unreasonable demands or acts against an employee when their refusal to respond to contact is reasonable, the Fair Work Commission has the power to step in with a stop order and impose penalties.

Whether the law will have a measurable impact on national productivity is still an open question, given that small businesses make up a significant share of the economy. For now, the initial implementation of the law is being closely monitored by the Fair Work Commission, and there may be future adjustments or clarifications based on how the law operates in practice.

Stephen Roebuck is the associate director of consultancy at Peninsula Australia.