The federal government is set to pass new laws that would grant employees the “right to disconnect” from their job outside their working hours.
Labor garnered support from the Greens and the crossbench in the House of Representatives on Wednesday evening, guaranteeing the Bill will come to a final vote in the Senate on Thursday morning.
Last year, the Greens tabled the Fair Work Amendment (Right to Disconnect) Bill 2023 with similar proposals. While that Bill did not pass, the discussion is back on the government’s agenda.
The Fair Work Amendment (Right to Disconnect) Bill 2023 will add the “right to disconnect” after work to the National Employment Standards to “ensure employees are not required to monitor, read or respond to email, telephone calls or any other kinds of communication from an employer outside their working hours”, the explanatory memorandum says.
There are current safeguards in place defining “unreasonable working hours”. SafeWork Australia’s Code of Practice Managing psychosocial hazards at work lists “long, irregular or unpredictable work-hours (e.g. doing shift work or being on call)” as a psychosocial hazard in the workplace.
However, there is currently no specific legislation that gives employees the right to “disconnect” or “switch off” from work.
Similar laws that grant employees those rights exist in several countries around the world, notably France and Germany.
So, how will the laws actually work? We spoke with Fay Calderone, an employment lawyer and partner at Hall & Wilcox, to learn more.
Clearing up the blurred boundaries
Your working hours may be 9-5, but you may find yourself checking emails, answering calls or responding to text messages outside those defined hours.
Under the proposed legislation, you may no longer have to do that.
The changes to the law would not prohibit employers from sending the texts or the emails; rather, it would grant employees the right to ignore them and leave it to address during work hours.
Industrial Relations Minister Tony Burke MP says the laws would mean “absolutely no penalty can be brought against them” for doing so.
Calderone noted the pandemic’s role in “blurring the boundaries” between work life and home life, which has resulted in “availability creep”. She speculates the changes may form part of the existing adverse action provisions in the Fair Work Act, which prohibit adverse action (such as warnings or termination of employment) being taken against an employee on certain protected grounds.
Adverse action taken against employees for setting firm work boundaries disproportionately affects women and carers who have more unpaid domestic or care responsibilities outside of the workplace.
“Maybe (the proposed laws) will fill the gap for unpaid work, and particularly for women who work reduced hours due to carers’ responsibilities, but this would require more carrot that stick,” Calderone told Women’s Agenda.
‘More stick than carrot’
The National Employment Standard in the Fair Work Act already provides the maximum working hours for full-time employees to be 38 hours per week. Full-time employees can only be expected to work “reasonable additional hours” considering various factors, such as work, health, safety and the employee’s personal circumstances, including family responsibilities. An expectation to work unreasonable additional hours is a breach of the Fair Work Act.
If the Senate votes in favour of legislating the “right to disconnect” Bill, Calderone said it would act as “more stick than carrot”: that is, employees will be able to seek the assistance of the Fair Work Commission for a “stop order” against their employer, and may have protection from adverse action if they disconnect.
The “carrot” potential was the concept of an “availability allowance” for periods during which communications are made to employees outside ordinary working hours. It does not seem this will form part of the new ‘right to disconnect’ provisions in the Closing Loopholes (No 2) Bill.
“The availability allowance may have gone some way towards closing the gender pay gap by ensuring women are remunerated for work outside their ordinary hours in circumstances where this is not available to them under an Award or Enterprise Agreement,” Calderone said.
“The proposed changes are part of public campaign that opens up the conversation even further, and provides some more detail, rigour and stick consequence that may accelerate the pace of change.
“It may also be open to employers to pay an ‘availability allowance’ as a matter of policy to increase the reasonableness of the requirement to work outside of hours or as part of the ‘reasonable business grounds’ justifying out of hours contact.
“There are no reports which presently suggest this will be the case and this can only be considered when we see the details of the proposed laws.”
Changes for women?
Calderone also wonders if the “right to disconnect” legislation’s definition of the term “reasonable working hours” and the “reasonable business grounds” permitting outside of hours contact will allow for subjectivity for carers, most of whom are women.
“It’s not clear – I haven’t read anything that suggests that will be the case, other than existing discrimination legislation and flexible work provisions,” Calderone said.
“I think there’s an aspect of it that will protect women and carers if it comes through, like the ‘no penalty’ provisions.”
The changes to the legislation would be desirable for women, Calderone said. Having the right to “disconnect” from work would give women and people with caring responsibilities “comfort” that they are not expected to take that call, answer that email, reply to that text or meet that out of hours deadline that has been imposed on them.
But Calderone expects not many women and carers would take a complaint to the Commission to obtain a “stop order”, even if the legislation was passed.
“I just can’t see that many working mums going off to the Commission and saying her employer is making her work unreasonable hours,” she said.
“This more frequently occurs in unionised workforces, with groups and people gathering together, which is not often the case for working mums, particularly those working flexibly.”