The impending legislated right for workers to disconnect from work outside their contracted working hours has the usual subjects again yelling that “the sky is falling” on employers.

The thrust of the proposed changes is to discourage employers from making unreasonable contact with or demands on their employees outside their contracted working hours, to provide for people to be paid for time worked outside their contracted working hours and to have access to the Fair Work Commission to make their employer stop making unreasonable connection with or demands on them outside their contracted working hours if the Commission finds the employer to be doing so.

There will be exceptions such as if the contact is due to an emergency or for welfare purposes. People who have roles that require them to be on call as a normal feature of their job won’t be an issue as long as the connection is reasonable in that context.

It has also been made clear by the Minister that it would be reasonable to contact relevant employees if a worker did not attend work and the employer needed someone to take their place or for normal rostering purposes.

Of course, if the contact is unreasonable, that might well constitute an unreasonable job demand in any case and therefore constitute a risk arising from a psychosocial hazard under Workplace Health and Safety laws.

Do you need to contact your employees outside their contracted working hours?

For the vast majority of workplaces, the answer is probably “no, other than in the case of an emergency or for welfare purposes” – just what the proposed legislative change says.

Sure, there will be times when you are working into the night and want to get an email off to an employee for their  attention when they come in in the morning ….. but you don’t need them to see it tonight so either delay sending it until the morning or use the scheduling facility on your email service for it to automatically go to the employee’s inbox at the start of their day in the morning.

It really is that easy to manage in most cases.

What about if the employee wants a flexible working arrangement?

One of the arguments that the naysayers are putting up is that this right to disconnect will adversely affect employers’ willingness to offer flexible working hours or hybrid working arrangements.

One of the things that should be covered off in the discussions and agreement about a flexible working arrangement is how communications and connection are going to be managed by the employer and the employee.

For example, let’s say a single mum who is an accounts clerk asks for a flexible working arrangement under which she would work from 9.30 am to 2.30 pm each day and from 8.00 pm to 9.30 pm each night so that she could manage her parental responsibilities in the morning up to school drop off time and from school pick up time through to the children’s bedtime. She might come into the office in the day and do the night work from home.

The arrangement with the night work might be that she can perform tasks which do not require interaction with others (eg data entry, accounts processing, etc) but that anything requiring contact with another person is to be done either by a scheduled email issuing the following morning or deferring that item until she came into the office the next day. 

You should Include that communications protocol in the flexible working arrangement agreement to ensure that it is understood and complied with.

And guess what? That pattern of hours of work becomes that employee’s contracted hours of work so there isn’t an issue of a need for that employee to disconnect in any case because they are working.  

Again, it really is that simple to manage in most cases.

Do you really want to be contacting your employees outside their contracted hours?

Because we live in such a digitally connected “look at it now” world, if you send something to an employee outside their contracted working hours, there are many who will not be able to resist having a look.

If, by having a look, that raises something for them that creates some level of anxiety and that in turn interferes with their state of mind and/or their sleep and/or their leisure time/rest and recovery and/or the relationship with their partner……..well, do you really want an anxious, tired, sleep deprived employee coming into work the next day?

The answer should be self-evident.

Other considerations

As noted above, a failure to ensure that there is no unreasonable connection with employees outside their contracted working hours could give rise to risks associated with psychosocial hazards and Workplace Health and Safety laws require employers to exercise a positive duty to eliminate or control such risks. There are a number of psychosocial hazards that could come into play in this regard. We have a blog and explainer video on each of the 14 psychosocial hazards on our website – you can access them here. 

Additionally, the Fair Work Commission has just begun a review of modern awards with respect to “Work and Care” and the issue of disconnection from work will no doubt be a prominent issue in considerations in that review. See https://ridgelinehr.com.au/award-review-on-work-and-care-underway/

We will keep you informed of further developments as they occur and ensure that we tell you what the real effects of legislative changes are rather than what the scaremongers would have you believe.

If there is anything here that resonates with you and you would like to explore further, give us a call on 0438 533 311 or email enquiries@ridgelinehr.com.au. We would love to have a chat about it.