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Australia’s Albanese government has passed another tranche of workplace relations laws: one of these, the ‘right-to-disconnect’ laws, was initially proposed to fine employers for contacting employees outside of working hours. However, it has since been modified to allow workers to ignore employer’s contact out of hours, if doing so is reasonable.
This legislation is one piece of the Albanese Government’s Closing Loopholes Bill, the essence of which is to deliver stronger rights and protections for workers.
As with any new legislation, there’s some confusion about the details, so we’ve provided a clear understanding of what you need to know, what your workers need to know, and how to ensure you remain compliant through careful preparation.
Embracing the Right to Unplug: A New Era for Workers
In today’s digital era, the lines between work and personal lives are incredibly blurred. And the COVID years didn’t help this scenario.
But that wasn’t always the case. Back in the pre-smartphone era, there was distinction between work and personal lives. Work was done at the office. And upon leaving the office, work was left behind (on the whole).
Today, laptops and smartphones that are provided by the employer have clear after-hours uses. And frequently, workers can come across texts and emails from their bosses at all hours of the day and night – sometimes, with the expectation of a response. This constant digital connection to work, extends the working day without any additional pay. This is at the core of these new laws.
The Tipping Point
When we consider the amount of unpaid labour taking place in Australia, thanks to after-hours digital communication, it comes as no surprise that the government has prioritised the passing of these laws.
According to the Australia Institute, “…the average Australian worker performs 280 hours of unpaid overtime per year, equating to more than $130 billion across the labour market…”
And the move is popular (other than with the old-school guardians of work attitudes). A significant majority of Australians think a right to disconnect is fair: A Centre for Future Work report shows 84 per cent of employed Australians expressed support or strong support for a federally mandated right to disconnect.
Understanding The ‘Right-To-Disconnect
Under the new laws, employees will be able to ignore phone calls, emails and other messages from their bosses after hours, without fear of punishment, where reasonable.
These new rights for employees include messages from third parties associated with their employer, such as suppliers and customers. In the case of labour hire workers, workers can ignore contact from their host employer.
The laws are not intended to block calls or contact about shift availability, workplace emergencies or work that is deemed critical.
The law has sparked intense debate as the bill progresses through Federal Parliament. Supporters commend the legislation for enabling employees to ‘switch off’ while opponents express concerns about its effect on flexible work arrangements. In a recent update, the ban on employers contacting employees and the fines for non-compliance have been eliminated. Instead, employees will avoid penalties if they choose not to respond to calls or emails from their employer outside of normal working hours if that choice is considered ‘reasonable’.
There appears to be a heavy emphasis on the employee’s behaviour here; that being, how reasonable is it for the employee to refuse connection to their employer, outside of ‘normal’ work hours?
As the laws come into place, employers are not allowed to retaliate against employees who choose not to reply to messages from their employer or a third party outside regular working hours.
Should employers take any adverse action, employees could potentially file general protection claims against them.
What’s ‘Reasonable’ Under the Right-To-Disconnect Laws?
There are various considerations here under these yet-to-be-tested laws:
- Employers can typically justify contacting workers – particularly more senior workers – based on common contract clauses that stipulate that the worker’s high salary includes reasonable overtime.
- For lower-paid workers, acceptable contact would need to occur based on specific stipulations in the workers employment contract.
- How can workers’ actions, without knowing the nature of the contact from their employer (when they haven’t opened a text or email message or a Slack ping), be deemed ‘reasonable’ or ‘unreasonable’ in their out-of-hours availability?
The other factor that will surely play a role in this equation are those relating to worker’s personal lives. So, for example, given two workers in the same job with the same salary, what’s reasonable for someone who is caring for young children, is a single parent, or is caring for ageing parents, might not be reasonable for their counterpart who has none of these out-of-work responsibilities.
And will this mean that the former can ignore work emails outside of office hours, but the latter can’t?
Measuring what’s ‘reasonable’ is potentially fraught, given the need for human assessment on both ends of the equation. This is where the bill needs more work.
Unreasonable’ Refusal: The Legal Side
Let’s get legally technical here for a minute: there are multiple factors to determine whether an employee’s refusal to engage with their employer outside of work hours is unreasonable. These factors include:
- The reason for the contact or attempted contact (which, as we stated above, how are they to know, unless they accept the contact?).
- How is the contact made by the employer (or other work-related party)? Meaning, what means have they used to reach out to the employee? And what is the level of disruption that this contact causes the employee?
- The employee’s compensation plays a role here, as we mentioned earlier. That being, are they paid adequately:
- to remain available to perform work during the period in which they were contacted; or
- for working additional hours outside of their ordinary hours of work.
- The nature of the employee’s role and the employee’s level of responsibility.
- The employee’s personal circumstances (including family or caring responsibilities).
The other important point to note here is non-monetary compensation. So, by remaining available to perform work outside of the standard office hours, workers can be compensated by additional time off, flexible working arrangement, gifts or other tangible rewards.
The crux of the matter is this: if the employer can prove that the attempted contact with their worker was necessary under law (Cth, State or Territory), and the employee refuses to respond, their refusal will be deemed unreasonable.
A New Dispute Framework: ‘Stop Orders’
The right to disconnect legislation introduces a fresh regulatory framework that serves as a basis for settling disputes between employers and employees. Initially, the expectation is for both parties to try resolving the matter at the workplace level.
If the issue can’t be resolved, either party has the option to escalate by seeking an order from the Fair Work Commission (FWC). The FWC has the authority to instruct the employee to resume contact, direct the employer to cease contact, or address the dispute in another manner.
In the case where the employer is deemed unreasonable in their contacting workers outside of work hours, the ‘stop order’ will act in a similar fashion to the stop bullying and stop sexual harassment jurisdiction of the FWC.
Mental Health and Work/Life Balance
During the Covid-19 pandemic, as many employees faced prolonged periods working remotely, workers started noticing how digital technology was blurring the lines between work life and personal life. They also noticed the impact this was having on their mental health and overall well-being.
The concept of a ‘right to disconnect’ emphasises maintaining a healthy boundary between work and home life, with a focus on the well-being of employees. This shift in adopting the new laws, acknowledges the changing landscape of work in today’s digital-centric environments. And don’t forget, with increasing hybrid working arrangements in place, employers have a duty of care to ensure their employees aren’t ‘always on’ and allow them to have a clear distinction between working, and not working.
What’s the Government Saying?
Workplace Relations Minister, Tony Burke, said last week that it was likely that employers and their workers would negotiate formalised arrangements for contact out of hours, and that these would be included in employment contracts and workplace agreements. In respect of award workers, Burke stated that their conditions of work would be updated by the Fair Work Commission.
Tony Burke also commented on the worker’s responsibility, suggesting that a ban on any penalties on the worker for disengaging may be appropriate. So, for example, if the worker decides they’re not going to have their phone with them on holidays, or they’re not going to check emails at night, then they can’t be penalised by their employer. This would also potentially mitigate any fines on the employer – because the worker can’t be punished for not being available.
Initially, a fines-based system was suggested; however, Tony Burke has advocated against penalising employers for contacting employees after hours. The decision to eliminate the fines-based system is based on the belief that employers should have the freedom to contact their employees outside of regular hours for valid reasons without facing penalties.
As we mentioned earlier, the government also stated that the laws would allow employers to contact workers for legitimate reasons such as filling empty shifts.
“At one level, it is interesting that this is even controversial. At its core, all we are saying is that you are meant to be paid when you are working in Australia,” Burke said. “This is effectively what this whole debate is about, and when there is give and take, having this right will make no difference at all.”
Tony Burke, Workplace Relations Minister
How Employers Can Prepare for the Right-to-Disconnect Laws
Employers need to be mindful that when the legislation commences – in six months – they will have less input into when they can expect their employees to respond to them if they’re contacting them outside of work hours.
So, to accommodate the employee’s right to disconnect, employers can get prepared. Here’s how:
Customise Policies: Developing precise policies that establish the limits of work-related communication outside regular office hours is essential. These guidelines need to clarify what constitutes emergencies or special circumstances that warrant contact.
Company Technology: Company Policies must also reflect what is deemed reasonable around the use of work technology, outside of working hours. Introducing solutions like email scheduling tools or communication platforms that honour do-not-disturb hours can support the implementation of the right to disconnect.
Management Advocacy: Educating managers about their rights and responsibilities under the new laws is crucial. Management training should include strategies for effectively managing workloads during working hours, and respecting employees’ boundaries when it comes to working outside of regular hours.
Employee Involvement:
- Provide training to employees about their new rights under this law, and what their employer is doing about it.
- Ask employees to get involved in new company policy development.
- Offer them the ability to provide feedback as to why they feel the need to work outside of office hours and collaborate on solutions. This will give everyone a sense of what is ‘reasonable’, in line with the new laws.
Advice for All Parties:
- Encourage employees and management to schedule emails and tasks during work hours.
- Organise training that highlights the mental health benefits of disconnecting from work.
And Finally…
Prime Minister Albanese has advocated for the view that if someone is not being paid to work 24 hours a day, then they should not be penalised for not being available 24 hours a day.
And although Australia’s workforce is one of the most highly regulated in the world, giving employees a right to disconnect isn’t unreasonable. The modernisation of our labour laws is essential if they are to reflect the realities of digital work environments.
What employers and employees need to acknowledge here is, it’s critical for both parties to the employment relationship to be on the same page as to what is ‘reasonable’. Workers that are under immense pressure at work and are stressed not only deserve a break, but they also become less engaged and less productive. So perhaps this legislation is in everyone’s best interests?
