Pay an availability allowance, it could save legal trouble

The “right to disconnect” debate has caused a rift in opinions. There are certainly benefits, but just as equally, challenges that threaten the initiative. An availability allowance could help to mitigate some of these challenges.

The Fair Work Amendment (Right to Disconnect) Bill 2023 has been praised by some and hounded by others. The main argument for scrapping the bill is the damage it could do to businesses that breach the ambiguous laws.

“We are gravely concerned that the proposed legislation will harm all business owners and operators, especially growing ones. The legislation will also impact the prospects for the very employees that it purports to protect. It will damage the communities that are reliant on the growth and resilience of local businesses,” said the Australian Chamber of Commerce and Industry.

“We cannot allow industrial relations laws to make it harder for hard-working business owners to generate the wealth we enjoy as a nation. We cannot allow industrial relations laws to make it harder for small-business owners to grow, create valuable jobs, and invest in skills.”

An effective way to ensure organisations don’t run into trouble by contacting employees outside of working hours is to implement an availability allowance.

As outlined in the legislation, the only times an employer is able to contact an employee outside of working hours is during a genuine emergency or if they are in receipt of an availability allowance for the relevant period.

Providing allowance payments for some, or all employees, gives businesses a legal leg to stand on in cases of contact outside of working hours. This offering must be agreed upon by both parties, however.

For organisations that rely on constant communication with staff, providing this safeguard could help get around this issue while still giving employees the option to agree or disagree.

“Some businesses have raised concern that it could hinder productivity and communication, particularly in fast-paced or client-facing environments,” commented Professor Emmanuel Josserand, an expert on the impact of innovation and director of the Business Insights Institute at UNSW Business School.

“However, the legislation does allow for some exemptions for urgent matters. The key is establishing clear guidelines and expectations around after-hours communication within organisations.”

Transparency is often an effective path towards implementing something new. By being open with staff, while providing monetary rewards for going above and beyond, employers are not only saving face but are actively creating a healthier workplace.

However, there is no specific availability allowance set out in the legislation. This could create issues as, without a clear figure, businesses could continue to exploit staff.

University of Adelaide Law Professor Andrew Stewart explained: “There’s nothing [in the law] which suggests that you have to have a specific availability allowance.”

“For non-award employees, who are, by definition, mostly higher-paid employees, the standard line by an employer is going to be, ‘we’re already paying you to be available’.”

Perhaps in the coming months, before the 26 August commencement date, further protections will be added to the bill. In the meantime, the ambiguity around the availability allowance could be damaging.

Despite this, leaders who require around-the-clock communication with staff now have a safeguard in case contact is necessary.