How the Right to Disconnect Laws Will Impact Small Businesses

The Australian Government’s new ‘right to disconnect’ laws aim to support employees in maintaining a healthy work-life balance. While these laws won’t apply to small businesses until August 2025, business owners and employees may still wonder how they might be affected in the future.

Australia’s workplace laws have evolved significantly in recent years. Notably, amendments to the Fair Work Act, part of the ‘Closing Loopholes’ package, have introduced new provisions like the right to disconnect. This change, which will take effect for non-small businesses in August 2024 and for small businesses in 2025, represents a shift in how work-life balance is structured.

In this article, we’ll explore what this change means for small businesses and offer guidance on how to prepare.

What is the Right to Disconnect?

The right to disconnect allows employees to refuse work-related communication outside of their regular working hours unless the refusal is deemed unreasonable. This includes any form of contact, such as phone calls, emails, text messages, or social media. The key factor is the timing of this communication—any contact outside of an employee’s set working hours.

This new law will be incorporated into modern awards by August 2024, making it applicable to various industries.

What Makes Contact ‘Reasonable’?

To determine whether contacting an employee outside of working hours is reasonable, small business owners should consider several factors:

• Urgency: Is the contact necessary? For instance, reaching out to an employee to notify them of urgent office repairs or a crisis where their role is critical may be reasonable.
• Nature of the Issue: If it’s a situation that requires immediate attention, such as safety concerns or an emergency, contacting an employee could be justified. However, routine inquiries about shift availability or similar matters would not be deemed reasonable after hours.

How Should Employers Make Contact?

If an employer must contact an employee outside of normal hours, there are some guidelines to follow to minimize disruption:

• Method of Contact: Choose the least disruptive communication method. For example, sending a brief text message may be more appropriate than calling, depending on the situation.
• Minimize Disruption: Ensure that the time required to respond is minimal and doesn’t interfere excessively with the employee’s personal time.
• Compensation Considerations: Consider whether employees are compensated for their availability outside working hours.
• Role and Responsibility: Be mindful of the employee’s position. Managers should be cautious when contacting lower-level staff outside of work hours, except in emergencies.

Challenges for Small Businesses

The right to disconnect presents several challenges for small businesses, especially those with flexible schedules or operations spanning multiple time zones:

• Time Zone Differences: If your business operates across different regions or globally, communication delays may occur. For instance, coordinating with employees in Western Australia could be difficult due to time differences with the Eastern States or other countries.
• Emergencies: In some industries, employees may need to be available outside of regular hours for urgent situations. Refusal to respond in such cases could pose operational risks.
• Work-from-Home Flexibility: For businesses with remote workers, flexible arrangements may need to be renegotiated. Automatic email responses and other technology tools may need adjustments to comply with the right to disconnect.

Preparing for the Right to Disconnect

Although the law won’t apply to small businesses until 2025, it’s important to start preparing. Here are some steps you can take now:

1. Assess After-Hours Contact: Review your business operations to determine which roles may require after-hours availability and how this will be managed.
2. Develop Clear Policies: Create or update workplace policies to define what constitutes ‘unreasonable’ contact outside of work hours. Establish clear guidelines for how non-urgent communication should be handled.
3. Educate Your Staff: Ensure that both your staff and management teams are aware of the right to disconnect laws. Provide training on employees’ rights and obligations under these new regulations to prevent misunderstandings.
4. Implement Technology Solutions: Utilize technology to manage communication more effectively. For instance, set up email systems that delay delivery until the next working day to avoid sending messages outside business hours.
5. Update Employment Contracts: Review and adjust employment contracts to reflect the right to disconnect provisions, particularly for roles that might require after-hours contact.

Addressing Potential Challenges

The right to disconnect aims to protect employee well-being, but it may create challenges. The Fair Work Commission will play a crucial role in determining whether contact is ‘reasonable’, taking into account factors such as the employee’s role, the urgency of the matter, and personal circumstances.

If disputes arise, businesses should first attempt to resolve them at the workplace level. If that doesn’t work, the Fair Work Commission can intervene to mediate or issue a stop order.

Moving Forward

For small business owners in Australia, understanding and preparing for the right to disconnect is crucial. Although the full impact of these changes won’t be fully understood until they come into effect, taking steps now to align your business practices with the new laws will help reduce risks, maintain strong employee relationships, and ensure compliance.