Proposed new laws allowing employees to ignore “unreasonable” contact from their bosses, and related third parties, after hours could potentially impact the real estate industry.

While the exact implications of the ‘right to disconnect’ legislation for agents and property managers is still being ironed out, Real Estate Institute of Australia (REIA) President Leanne Pilkington said she was eagerly awaiting further information.

“It will be an interesting thing to watch, in particular for our property managers,” she said. 

Ms Pilkington said the fact the legislation appeared to relate not just to contact made by an employer, but also related third parties, could potentially cause issues.

“Both investors and renters expect to be able to contact their property manager when they need them,” she said.

“Whilst it is logical that emergencies will be exempt from these rules, there are still two issues, in that not everyone’s understanding of an emergency is the same.

“And, if a PM takes from the legislation that they don’t need to be monitoring the phone or the email, important issues will get missed or delayed.”

Under the right to disconnect, employees could not be punished for refusing to take unreasonable work calls or answer emails in their unpaid personal time. 

“What we’re simply saying is someone who’s not being paid twenty-four hours a day shouldn’t be penalised if they’re not online and available 24 hours a day,” Prime Minister Anthony Albanese told reporters in a doorstop interview outside Parliament House, earlier this week.

Ms Pilkington said as real estate and property management was a service industry, it would not work to attempt to tell investors and tenants that property managers were completely unavailable after hours. 

She said it was more likely that there would be clear conversations between employers and property managers around the expectations of what after hours work could be reasonable.

Ms Pilkington also shared one tip for agency owners who were emailing employees after hours, saying she scheduled her emails to be received during office hours.

The right to disconnect comes under the Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023, which was introduced and fought for by the Greens.

Greens Leader Adam Bandt said the legislation was especially a big win for women and carers who often had to juggle employment and caring responsibilities.

“Whether you’re a nurse, teacher, or hospo worker, the Greens believe you shouldn’t have to answer calls or texts from your boss on your day off or after hours if you’re not being paid for it,” he said.

What is the right to disconnect?

According to Smart Company, the proposed legislation does not ban employers from contacting workers out of hours, but instead notes that an employee may refuse to monitor, read or respond to contact, or attempted contact from their employer or a related third party, outside their normal working hours unless the refusal is “unreasonable”.

Workplace relations minister Tony Burke told ABC RN Breakfast earlier this week that it was still ok for employers to send an email to an employee after hours or to contact them about a shift. 

“All those sorts of things are completely reasonable and we don’t want to get in the way of that,” he said.

“But if you don’t respond because it’s not your paid time, you’ve got a guarantee that you can’t be punished for it.”

What is “unreasonable” refusal?

That will depend on a range of factors, including the type of job you’re in. For example, an emergency doctor on call, would be required to be contactable at different times of the day, but a retail worker typically works 9am to 5pm.

According to the proposed legislation, refusing contact may be “unreasonable” based on:

• The reason for out of hours contact
• How the contact is made
• The level of disruption to the employee
• The extent to which the employee is compensated (such as an on-call allowance or remuneration for working outside normal hours)
• Any non-monetary compensation the employee may receive on top of their wage
• The nature of the employee’s role and responsibilities
• The caring responsibilities of the employee. 

What happens if there’s a dispute?

Employees and employers, considering the factors above, should try to come to an agreement at workplace level. 

If they can’t, the matter can be taken to the Fair Work Commission, which can enforce ‘stop’ orders on both sides, including:

• The employee from “unreasonably” refusing out-of-hours contact
• The employer from contacting a worker out of hours
• An employer from taking disciplinary action against the employee, due to the employer’s belief that the refusal is unreasonable.

It’s also worth noting that the FWC can reject disputes under certain circumstances, including if they are deemed “frivolous or vexatious”.

When will the right to disconnect begin?

The right to disconnect, and the rules that come with it, will begin six months and one day after the legislation receives royal assent. 

However, small businesses that have fewer than 15 employees will be shielded from the amendments for an extra 12 months.