The rationale behind the new “right to disconnect’ legislation seems reasonable enough: technological advancements mean work related contact can exist well beyond paid hours, so regulation is now required to avoid any abuses or misunderstandings that could arise as a result. Hence the passing of The Right to Disconnect legislation on February 12 which will see the introduction of laws governing work-related contact outside structured workhours. Within six to 12 months, a new system will be in place whereby employees will be able to refuse to read, respond, contact, monitor any contact from an employer or a company client/third party, outside normal working hours. The aim is to strengthen work-life balance, protect employee’s mental health and reduce stress, the basic idea being that employees should have the right to refuse any dealings with work – when reasonable and without suffering consequences.

Down to details

It sounds simple. Yet like all requirements, rules and regulations, the devil is in the detail. While some legal observers say it is a step backwards for flexibility, at the end of the day the new laws mean each industry, business and company no matter how large or small, must ensure employees and managers are all provided with exceedingly clear guidelines around being contacted outside of stated working hours. What’s more, lawyers advise that what constitutes actual working hours should now be specified in all employment contracts for non-industrial instrument employees, as the new legislation does not carry a strict definition of ‘working hours’.

What does it mean for real estate?

The real estate industry’s leading workplace advisory body agrees. The only way in which the sector will be able to successfully navigate this tricky new legislation is via clear education and communication, according to the Real Estate Employers Federation (REEF). For instance, employers must ensure that employees understand the precise definition of “unreasonable” when used in relation to contact outside of work time - contact that could be in the form of phone calls, emails, MS Teams messages, texts, social media messaging services or other.

“Under the new laws, employees will be able to raise a complaint about intrusive phone calls or the expectation they answer work emails out of hours with their employer,” says REEF CEO Bryan Wilcox.

“If the issue is not resolved at the workplace level employees can apply to the Fair Work Commission for an order on the employer to stop unreasonable out-of-hours contact.”

Leading employment lawyer Mark Curran views the new legislation as at odds with the rise in flexible working. “The flexibility of hybrid working will be in contrast to the restrictions imposed by the new right to disconnect laws at a time when businesses value flexibility from a human resources and economic standpoint,” says Mr Curran, the Brisbane-based principal of commercial and corporate legal firm Gilchrist Connell. He points out that, as is often the case, “the new laws raise more issues than answers”. These include:

  • What comprises an employee’s working hours?
  • How will the laws apply to employees that work habitually long hours?
  • How should an employee respond if a client contacts them outside work hours requiring urgent assistance with a work-related matter, when the employee does not wish to be contacted?
  • Can an employer lawfully consider such factors as the requirements of a role when deciding whether an employee’s refusal is unreasonable?

Mr Curran says it is highly recommended that employers establish specific policies around what the right to disconnect means for their businesses and employees. These policies should specify such things as appropriate responses when contacted by customers and clients outside work hours, and how disputes are dealt with at a workplace level.

The common sense approach

At the end of the day, common sense should prevail, Mr Wilcox says. “If people take a sensible approach to how [the legislation] is going to operate in reality I don’t know that it’s going to cause too many problems for our industry,” he says.

Sales agents whether working in commercial, industrial, stock and station, residential or buyer’s agency settings would certainly have a right to disconnect. But “it would seem unlikely that in practice they would choose to exercise that right as it is probably going to have a detrimental impact on their commission earning capacity,” Mr Wilcox points out.

Property managers (commercial, industrial, residential, or strata) were already entitled to be compensated when required to be on standby or to perform work outside ordinary hours.

The best advice was for real estate employers to focus on delivering clear communication, training and setting expectations in regard to the new laws. Employers should look at training managers in the new laws, as well as educating employees on their rights and what’s reasonable.

Mr Wilcox says employers should be looking now at modifying future employment agreements where necessary and cementing policies concerning the right to disconnect, to the point that “agreements spell out what the expectations are surrounding being contacted outside of normal business hours.”