If you would like to listen to this blog post in audio format, please click here.  

I am all for employee rights as long as they make sense. But there is a fine balance between what is right and what oversteps the mark.

I have never understood the pay awards system in Australia. But I do get that we need a safety net when employees all of a sudden find themselves with no work.

But again, there is a fine line. Should we, for example, pay people because they have lost their jobs, or should we be teaching them how to control and understand money so that they always have a safety net in the event they do lose their jobs, which then means there is no need to rely on the state?

But, like I said, we need to find the right balance. For the last 20 years (exclude the pandemic) Australia has had a shortage of staff. This generally keeps wages high, which means anyone who wants to pay below market price is going to get crap staff which means they probably deserve a lower pay. In which case you need to ask why we need awards and the red tape.

It’s the same for payroll tax. Recently I explained payroll tax to my 15-year-old )yeah, I know we are a bit of a messed up family), and he just scratched his head and then made a comment. ‘I get paying a tax when you have income but why should you pay a tax when you have paid out money?’ Surprisingly, none of the state governments can answer that question.

Anyway, employers will reluctantly take more and more red tape, but there comes a point where it gets too much, and we decide and try to find alternatives. And, unlike 20 years ago, the alternatives are there with our global talent pool.

The state has decided that because Australia has a mental health problem, this must be the fault of employers. That is because Employers can contact their employees outside of normal working hours. This obviously is evil, and that cannot be done.

So, the law is about to be changed so that employees have the right to ignore late-night calls from the boss (in certain circumstances) and changes the way many employers and employees will need to approach communicating outside of ordinary work hours.

The business community does not like this, and it does make sense. Legislators do not live in the real world. Businesses do, so make this work in practice is going to be a bit of a nightmare.

So what does the law say?

Your Employee has the Right to Disconnect

Under the new right to disconnect legislation, an employee may refuse to monitor, read or respond to contact (or attempted contact) from their employer or a third party outside their working hours unless the refusal is unreasonable.

How do you determine if it is unreasonable, and if you have decided not to monitor, read or respond, how can you determine that it is unreasonable?

See what I mean?

It will be unreasonable to refuse contact if this is required under a law of the Commonwealth, State or Territory.

In other words, in 99% of cases, an employer will not be able to contact their employee out of hours.

But there’s more.

That’s because the employer has to sit with a checklist and ask:

• the reason for the contact or attempted contact;
• how the contact is made and the level of disruption it causes the employee;
• the extent to which an employee’s remuneration compensates them to remain available to perform work during the period in which the contact is made or work additional hours outside their ordinary hours of work;
• the nature of the employee’s role and their level of responsibility; and
• their personal circumstances (including family or caring responsibilities).

Small business employers will be exempt from these provisions for 12 months following the commencement of the new laws.

Exemptions also apply for matters that might involve Australia’s defence, national security or an operation of the Australian Federal Police. I don’t know many businesses which will fall into this category.

The new right does not stop employers from sending emails to employees outside of work hours. However, employees who choose to ignore attempts by their employers to contact them after hours cannot be disciplined for their performance.

I was just thinking about this. Let’s assume I prepared a Power of Attorney for a couple. There is a major accident on Friday night, and both are now in hospital and cannot make health decisions. The power of attorney says their parents can, but the parents do not know where the couple have kept their certified copy of the attorney. We have the original in the office, but I cannot seem to find them, and I need to contact my staff member who does as they deal with this client on a day-to-day basis. The hospital needs this before it can take instructions from the parents. Time is critical.

What happens if the staff member I need to contact has decided they will not monitor, check or respond because it happens to be out of hours?

Now admittedly, this is a bit extreme, but what about massive ATO demands which are freaking my client out. Do we wait 3 days, allowing them to freak out even more?

It appears it’s OK to mess with a business owner’s mental health but not an employee’s.

As you would expect from legislation, there’s a lot more in the form of rules and regulations.

Disputes

If employers and employees cannot resolve a dispute about the right to disconnect, then they are able to apply to the Fair Work Commission (FWC) for a “Stop Order”.

This will be similar to the current anti-bullying regime. For employees, this will mean they are able to apply for an order that their employer stop making unreasonable contact with them. For employers, they will have the ability to apply for an order that an employee stop continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact from their employer.

In other words, more regulation and red tape which could drag on for months.

What should you do?

HR firms will tell you this new legislation is overly prescriptive be manageable with the right approach and processes in place.

Frankly, that is crap. This is a piece of stupid legislation trying to crack a nut with not a hammer but a sledgehammer.

The legislation should protect those employees whose employers are being unreasonable. I get that. So do you. However, the way this legislation has been written does not work that way. All employers are put in one box.

The government has told us this extension is just an obligation of businesses to ensure the ‘psychosocial safety of their workers’ and that similar rights already exist in countries such as Spain and France. What they will not tell you is that France and Spain do not exactly have great worker productivity. It is lower than Australia.

You need to start to consider how you can update their existing work practices and policies and provide training to managers.

In other words, spend more time on red tape and less time actually running your business.

And this is where you need to consider alternatives in the form of our global talent pool, because this legislation does not apply to those outside Australia.

If you would like to know more, please email Hitesh at hitesh@wowadvisors.com.au or Ros at ros@wowadvisors.com.au or call 07 3161 9548.