What the Right to Disconnect legislation means for you

Clear education and communication will be the key to the real estate industry navigating the new Right to Disconnect legislation, according to the sector’s leading workplace advisory service.

Under the new laws, passed earlier this month, employees will be able to refuse to monitor, read or respond to contact, or attempted contact, from an employer or third party, outside their normal work hours.

The Right to Disconnect will prevent employees being disciplined for refusing to take unreasonable work calls or answer emails in their unpaid personal time.

How the legislation will work

Real Estate Employers Federation (REEF) Chief Executive Officer Bryan Wilcox said the scope of the Right to Disconnect would apply to phone calls, emails, texts, MS Teams messages or any other contact by an employer outside the employee’s ordinary hours.

“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,” he said.

“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.”

Mr Wilcox said the word “unreasonable” would form a key part of the laws and while each instance would be considered on a case-by-case basis, he said there were several factors that could be relevant in deciding if an employee’s refusal to stay connected was unreasonable, including the reason for the contact or the attempted contact, how the contact or attempted contact is made and the level of disruption to the employee.

He said other factors that could be considered were the extent to which the employee is compensated to remain available and work additional hours outside their ordinary work hours, the employee’s role and level of responsibility and their personal circumstances, such as family or caring responsibilities.

The impact on real estate

Overall, Mr Wilcox said he didn’t see “massive implications” for the real estate industry. 

“I’m not saying it’s not a big deal, the legislation, but I think if people take a sensible approach to how it’s going to operate in reality, I don’t know that it’s going to cause too many problems for our industry,” he said.

Mr Wilcox based this assessment on the four main groups of employee roles in real estate – sales agents, property managers, senior business managers and administration staff.

Sales agents (residential, commercial, industrial, stock and station and buyer’s agents)

In terms of sales agents, Mr Wilcox said most were engaged on an incentive-based remuneration arrangement, with the incentive largely associated with generating commission or fees, which meant it was improbable that they would disconnect.

“While a salesperson will certainly have the right to disconnect under the new legislation, 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,” he said.

“In other words, a call or an email ignored, could be a listing or sale missed.

“They have the right to disconnect under the legislation, and if they want to do that they can, but I don’t think it’s a practical reality that’s going to occur.”

REEF CEO Bryan Wilcox

Property managers (residential, strata, commercial or industrial)

Mr WIlcox said he didn’t see a lot of impact in reality for property managers either, despite the fact the legislation also applies to contact from third parties such as tenants and landlords.

He said the real estate industry award already prescribed that a property manager is entitled to be compensated when they are required to be on standby or called out to perform work outside their ordinary hours.

“So, if you want your property managers to be available to speak to your tradespeople or your tenants, or even your landlords, outside of normal business hours, then you have to pay them an additional allowance already,” Mr Wilcox said.

“Under the new law, property managers are going to enjoy the right to disconnect as well, except in circumstances where they’re being compensated to remain connected and they’re being paid to be connected. 

“So I don’t see a lot of impact in that particular part of our industry.”

Senior business managers

Mr Wilcox said when it comes to senior business managers who are paid well in excess of the base rate of pay prescribed by the award, it might be unreasonable for them to rely on the Right to Disconnect provisions if they elected not to respond to communication from their employer outside their ordinary hours.

He said REEF would examine the prospect of amending its template Employment Agreement for senior business managers, to clarify that the salary level comes with broad communication expectations.

“In other words, it may become a contractual obligation to remain connected, for which the senior manager is satisfactorily compensated,” Mr Wilcox said.

Administration staff

Mr Wilcox said it was rarely necessary that an employer would need to contact clerical or admin staff outside normal working hours but, if they were, and they did work extra hours, they were entitled to be compensated. 

“The Right to Disconnect legislation reinforces this right, but also gives all employees the right to refuse contact in circumstances where they are not being adequately compensated,” he said.

Preparing for the new laws to come in

The Right to Disconnect legislation will come into effect for big businesses, with 15 employees or more, six months after the Bill is given Royal Assent.

Businesses with 14 or fewer employees will have 18 months after the Bill is given Royal Assent.

Mr Wilcox said real estate employers should practise clear communication, training and set expectations in connection with the new laws.

“Employers should certainly consider providing training to their managers, so that the managers are aware of the new laws and avoid taking any disciplinary action against employees who are exercising their right to disconnect,” he said.

“Conversely, I think it’s important that employees are educated about the new laws to say, ‘This is what your rights are, and we will respect those rights within the context of what’s reasonable’.

“Lastly, I think employers should consider, and we will certainly be helping them do this, preparing policies around the Right to Disconnect and modifying future employment agreements, where necessary, so that the agreements spell out what the expectations are surrounding being contacted outside of normal business hours.”

Can PropTech help?

Propic Chief Commercial Officer David Choi said Artificial Intelligence and PropTech solutions could certainly help real estate businesses manage out of hours inquiries and work.

“In response to the recent government decision on Right to Disconnect legislation, and its potential impact on the real estate sector, Propic believes that technology, particularly our conversational AI platform CLAIRE, can play a pivotal role in helping real estate agencies navigate and even circumvent potential issues that may arise,” he said.

Mr Choi said more than 70 per cent of CLAIRE’S engagements, or conversations, occurred outside business hours, with the highest spikes between 6.30pm and 10pm.

He said CLAIRE engages in, speaks and manages almost 50,000 unique customer conversations per month, supports about 226,405 tenants and manages a maintenance job every three minutes.

Propic’s David Choi

“CLAIRE, as a conversational AI platform, boasts an array of capabilities that cater to general web, sales, and property management inquiries, including lead augmentation,” Mr Choi said.

“Our platform’s property management workflow offers comprehensive services, such as follow-up and chasing of arrears and invoices, repairs and maintenance coordination, and move-in and move-out services.

“CLAIRE’S multilingual capabilities, covering 92 per cent of all the most spoken languages in Australia, and its omni-channel functionality (SMS, email, and web) ensure seamless communication with clients and tenants alike.”

REACH Asia Pacific Managing Partner Peter Schravemade said in addition to CLAIRE, other PropTech options that could assist agencies included Tapi, which is a property care platform that helps residential property managers better report, track and plan maintenance and repairs.

“Bricks+Agent would be another one that’s out there that handles all of those after hours calls,” he said.

“And then you’ve got reHeroes too. They all have solutions that are absolutely designed to stop or allow for the disconnection of employees away from the business in the property management region.”

Mr Schravemade said there were options for the sales side of the business too. 

“We’ve been a massive advocate in the sales division of disconnecting and some of our options, like Market Buy, absolutely allow the sales agents to disconnect or have very limited contact if that’s what they require,” he said.

“I’m quite confident that in the real estate industry, PropTech has been moving to solve this and the impact on it is not going to be as great.”

REACH’s Peter Schravemade

Mr Schravemade said many agencies had already implemented such PropTech in order to serve their customers at the times they wanted assistance but also to protect their employee’s mental health.

“The property management community in particular have, for a long time, understood the need, not necessarily the right, but the need for property managers to disconnect after hours,” he said.

“And there’s been no greater period than the past two years where a light has been shone on the mental health and wellbeing of our property managers.”

Is outsourcing an option?

Mr Schravemade said there was also potential for real estate businesses to outsource some tasks, particularly in the property management sphere, to professional outsourcing companies in countries with opposite time zones to Australia.

He said as a business operator he would have looked at one of three solutions to the new legislation.

“Number one, I’d write tech to solve the problem,” Mr Schravemade said.

“If I was unable to do that, I’d look for an out of the box solution from any of the companies I”ve mentioned and then the third thing I would do in business operations, if that was going to be a problem, is I’d look to outsource it.

“And those three options are probably the solution we see for most of the issues that this legislation may cause.”

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Kylie Dulhunty

Kylie Dulhunty is the Editor at Elite Agent.