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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.
RELATED TERMS
An employee is a person who has signed a contract with a company to provide services in exchange for pay or benefits. Employees vary from other employees like contractors in that their employer has the legal authority to set their working conditions, hours, and working practises.
Kace O'Neill
Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.
