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Friday Workplace Briefing

What Is All The Fuss? The Right to Disconnect, When It Becomes Law and How to Manage It With Your Employees

In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang explain what all the fuss is about regarding the Right to Disconnect. They’ll discuss when it becomes law and how to manage it with your employees. It is not as bad as others are telling you!

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: So let’s now go on to the major topic because it is a really big issue this week. Can we just say now the Right to Disconnect is not a big issue.

Nina Hoang: No. Yeah.

Andrew Douglas: So, Nina, just go through very simply what it says and what is the obligation and what is the solution.

Nina Hoang: Yeah. So all it means is that an employee does not have to monitor or respond to contact by an employer or third parties related to the business or related to work during out of work hours.

Andrew Douglas: If it’s unreasonable.

Nina Hoang: Yeah. But there’s no obligation that no one else can like do the… It’s just that they don’t have to. Like if they elect to, they can–

Andrew Douglas: But as long as their election is reasonable.

Nina Hoang: Yeah. No, no, as in they can… I’m saying that they can choose to look at it if they want.

Andrew Douglas: Yeah.

Nina Hoang: There’s nothing stopping them from taking that initiative if they want to. And as to the unreasonableness, it will look at what is the nature of their duties, how senior they are, how reasonable the request is, if they’re in the middle of like family and caring responsibilities and how much they paid.

Andrew Douglas: But let’s come back to the beginning though. So I’ve tried to reach you and you decide you just switch off your work phone at the moment you leave work. You’re a lawyer, you know that we’ve got industrial action going, you can’t just refuse to look at it.

Nina Hoang: No, because I know all that so it would be unreasonable.

Andrew Douglas: That’s right.

Nina Hoang: If it’s an emergency, it’s urgent.

Andrew Douglas: Yeah. So what I want you to understand is the issue here is reasonableness. And therefore the way that you deal with your staff is make sure they understand what a reasonable execution of their duties look like. And we’re really only talking about people who–

Nina Hoang: Like senior people.

Andrew Douglas: Senior people. So like, it’s easy.

Nina Hoang: And also I don’t think it changes the status quo because I don’t think junior employees who I think this is targeted at, this is not happening to them. So these new rights, I don’t think it’s going to impact them. And the people who are normally contacted out of work would already be reasonably compensated for it, which is what the legislation provides for.

Andrew Douglas: So that really brings us to the answer, which is one part is about communication, about what is reasonable. That’s when you employ people, that’s in the employment contract, that is a policy, the out of hours work policy, which deals with misconduct out of work–

Nina Hoang: Which is also regular communication about expectations.

Andrew Douglas: Absolutely, yeah.

Nina Hoang: Which is things that you should be doing anyway.

Andrew Douglas: Anyway. So look, the other thing it does do though is create a workplace right–

Nina Hoang: Yes, that’s right.

Andrew Douglas: -which means you can have a general protections claim very quickly.

Nina Hoang: Only if you adversely treat them as a result. So if you fire them because they didn’t answer it and it was an unreasonable request.

Andrew Douglas: All right, let’s get a move on, because that’s a nonsense–

Nina Hoang: It’s honestly not going to make a huge difference.

Andrew Douglas: Can I say, there is a process that Nina and I have. So if you want to know how to deal with this and you’re not quite sure how to do it yourself, just give us a call, you’re not going to get charged. We’ll tell you what you need to do. If you want us to fix it and update your policy and contract so that fixes it, absolutely, we’re happy to do it, okay? But the real issue for you is around communication. Let’s talk about Closing the Loop because we are running out of time rapidly today.

Nina Hoang: That’s true.

Andrew Douglas: So the casual employment contract is now going to be looked at on the basis of the nature of the work that you do, not on the contract.

Nina Hoang: Yeah, or both.

Andrew Douglas: Both, yeah.

Nina Hoang: Yeah, it’s looked at both. And now they’ve removed completely the right for an employee to request to become casual. Instead, once they meet either the six months or 12 months, depending on whether it’s a small business or not, an employee can decide, look, I think based on the nature of my employment, I think I actually would be a permanent and they can raise it that way. It’s not a request. So if an employee now wants to stay casual forever, they have that right to do so.

Andrew Douglas: Which is good isn’t it?

Nina Hoang: Yeah. But the employer still has to at that six and 12 month month still offer them the right of casual conversion, it’s just the request part is gone. You now also have to issue that casual information statement every 12 months now, not just at the start of employment. So it is an interesting shift and I think we’re going way back to looking at the substantive part of the relationship, but it’ll be interesting–

Andrew Douglas: And we’re seeing it certainly when we’re looking at contractors because Jamsek and Personnel gone now. And one July they’re gone. And we look at the how it fits as a whole rather than the contract. So the contract’s still important because it’s a factor in the the group, but they will be looking forward to how people work rather than how you engage them.

Nina Hoang: Yeah, that’s formally in the Fair Work Act now as a definition for employee.

Andrew Douglas: There is an opt-out notice, which is interesting.

Nina Hoang: Only for contractors who get more than the high income threshold though.

Andrew Douglas: Yeah, okay. So look, sham contracting, that’s a change, a much easier way of proving it moves from you having to be reckless with sham contracting to face the criminal prosecution to if you had a reasonable belief, you can be prosecuted.

Nina Hoang: The law is the threshold.

Andrew Douglas: Yeah. Rights of entry around underpayment, you can get a Fair Work Commission waiver to go in in less than 24 hours.

Nina Hoang: Yeah, because for everything else, they now have to give you 24 hours notice.

Andrew Douglas: Yeah. Unfair contracts and independent contractors, that gives a Fair Work Commission an opportunity to actually intervene if you’re underneath the high income threshold, you can go off the Fair Work Commission to get an order, can’t you?

Nina Hoang: Yes, that’s right.

Andrew Douglas: Yeah. And look, what I think we’ll do, because we’re so short of time, is we’re going to send this out to everybody as a notation, so you know at a high level what the changes are. You okay with that, Nina?

Nina Hoang: Yeah.

Andrew Douglas: I think it’s too much to go through today and we have quite a substantial problem to deal with as well. So let’s go onto the case study because it’s a big one today.

Nina Hoang: Yeah, you made it very long.

Andrew Douglas: So I’m sorry. Let’s go onto that.

Nina Hoang: January had been a tough time for Burger Brilliance, a wholesale meat processing burger plant in Coburg, Victoria, swelling rumours about a buy up from their competitor have left their Operations Manager Ken and CFO, Jean at loggerheads over improving EBIT over the next six months to enhance the buy-out figure based on improved future maintainable profits.

This meant shelving the two new lines that Ken needed for the productivity projections to meet sales expectations for ’23 ’24 and beyond. It led to an internecine.

Nina Hoang: Yeah, I had to put that in for you.

Nina Hoang: Oh my gosh. Well, I’ve got that primarily from Jean. This is bullying because they’ve all witnessed you repeatedly doing this.

But in defending himself sometimes can to the owner, Raphael, sales people and anyone who could pressure the result.

On Friday 12th of January, 2024, Jean sent an email, CC’d into the owner, doing a brief analysis of the already approved CapEx for the new lines to Ken, showing the hit in profits of the next six months and what a flawed strategy it was, while simultaneously pointing to excessive plan maintenance and downtime keeping existing lines afloat. For Ken, this was a lose/lose. He had to keep current lines going, but it was aged clunky capital that was on maintenance life support.

He couldn’t keep up with demand. He needed the new lines and he won approval for that in December, 2023 against Jean’s demonstrations. Now, she was seeking to unscramble the egg and put the blame on Ken. Ken’s life was a mess. His wife had left him in July, 2023 and he had primary care of two teenage kids. He was taking antidepressant medication to deal with the loss, and work had been hell. More specifically, Jean had been hell.

She had waged a nasty war against him, undermining him to the owner and indiscreetly sharing information about his relationship failure and diagnosis. She had seen his certificates from his doctor when he took time off in September.

Gosh, she’s nosy.

When Ken saw the email, it was the last straw. He got up, left his desk and walked to his car. As he went in to get his car, the owner, Raphael, asked where he was going, if he was all right. Ken said, I just can’t take this anymore.

He switched his mobile off, waited at home for the kids and then told them he needed a break for a few days. They’re excited and packed, happy for a brief holiday with their dad who they love so much. Later that night, he sent an email to Raphael explaining what was happening with Jean, attaching a copy of a ream of Jean’s inappropriate messages and texts and said, I just can’t take it, I’m taking the kids for a short break. He told Rafael he was switching off and disconnecting for a few days.

Rafael went to his lawyers at the big end of town.

Andrew Douglas: Sorry, this is…

Nina Hoang: They said he had abandoned his employment and arranged a letter to be served upon Ken saying if he remained absent for three days without a reasonable excuse, he would be taken to have abandoned his employment. The process server served him in his driveway as he was driving off and he tore up the letter.

The lawyers sent another letter by registered post which he collected upon his return five days later saying, as we have not heard from you for three working days since our original letter, BB accepts your repudiation of employment by abandonment. You have clearly convinced an intention to no longer be bound by your contract of employment with BB, tearing up our first letter and failing to respond as required.

Andrew Douglas: All right, now that was a lot.

Nina Hoang: Oh my gosh.

Andrew Douglas: Did Ken abandon his employment? Absolutely not because he–

Nina Hoang: He made that clear, it was short break.

Andrew Douglas: Okay, so that stuff got that done. We’re getting back on time. Does Ken have a good unfair dismissal claim? Absolute winner.

Nina Hoang: There’s no valid reason.

Andrew Douglas: No valid reason.

Nina Hoang: No procedural fairness.

Andrew Douglas: There’s just nothing at all. Does Ken have a good general protections? Absolutely. Yeah.

Nina Hoang: They know about his mental health issues.

Andrew Douglas: Yeah, he had a workplace right in relation to the bullying he was clearly having. Everything–

Nina Hoang: He had a right to take the time off as well.

Andrew Douglas: Yes. Well maybe, maybe not. But anyway, it was in… Does Ken have a good… Yes, good discrimination claim.

Nina Hoang: I feel like the Right to Disconnect would’ve played in because it was outside of work.

Andrew Douglas: Oh look, don’t make things harder. Okay, did Raphael, who knew Jean’s… Oh sorry, did he have a good workers’ comp claim? Hundred percent, okay? Did Raphael, who knew Jean’s behaviour and its past impact Jean and BB have problems under safety law? Boy did Jean have some problems under safety law. Her behaviour goes more than section 25 breach or–

Nina Hoang: Reckless engagement.

Andrew Douglas: -failing to take reasonable care. It’s sort of up at reckless endangerment. Raphael’s knowledge, it puts him at risk and the organisation. So the answer is they all have really significant problems. The advantage for them is Ken didn’t suffer a major mental health breakdown.

Nina Hoang: Not yet.

Andrew Douglas: Not yet. But just say he did, then there would be a prosecution. Has Jean breached any privacy obligations?

Nina Hoang: Yes.

Andrew Douglas: In Victoria and New South Wales and Queensland Health privacy legislation, in all other states there’s different legislation including national privacy legislation. But in Victoria it’s a big breach and would be a penalty.

Nina Hoang: I think it’s a breach everywhere because–

Andrew Douglas: It’s breach everywhere but–

Nina Hoang: -you have to collect it, but she’s using it for a purpose not for which it was collected.

Andrew Douglas: Oh totally. But in Victoria, the health records legislation is actually strongly chaired and people are prosecuted as this thing from every other state, which looks to normal privacy commissioners who are a bit more recumbent and less aggressive. But can I just say to you, after the change that occurred later this year, Jean would be in lots of trouble and so would the organisation be.

Nina Hoang: Jean was screwed.

Andrew Douglas: So look, the reason we did that is I wanted to show you what abandonment looks like. Okay? Because it is a term that is constantly used, constantly misused and not understand. If anyone during a period of departing a business because they’re angry like Ken, or being away for an excessive period indicates that they do continue to be at work or they do want to be at work, it may be misconduct what occurred, and it may be serious misconduct, but it’s not abandonment of employment, okay?

All right. Well look, I know we really rushed. Gee. We’ll get the Closing the Loop stuff out to you with our next email so that you’ve actually got it and you know what it is. Don’t worry about the Right to Disconnect, please.

Nina Hoang: No, I don’t.

Andrew Douglas: Ring Nina or I or Kim or Qiuyi on it, and we’ll take you through what you’ve got to do. But it’s easy, it’s not frightening. And we’ll be back at the same time next week.

Nina Hoang: Yeah, give us a thumbs up.

Andrew Douglas: See you later, and tell us what you feel, by the way, tell us what you feel about the structure of our briefing. Bye.

Nina Hoang: See you.

Andrew Douglas: Thumbs up.

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