By
Gaby Grammeno
Contributor
Your view on the right to disconnect depends very much on where you stand. The challenge for employers will be to optimise the trade-off between business practicalities and recuperation time for workers.
The old nine-to-five routine with weekends off is swiftly becoming a nostalgic fantasy. It’s been progressively eroded by the drift towards 24/7 trading, commercial pressures, online interaction, smart phones and working across time zones. The shift to remote working during the COVID pandemic blurred the boundaries between work and personal life even more.
WHS issues
Worker fatigue is a real issue and workers need time to ‘switch off’ and be unavailable to the employer.
The expectation that staff should be available round the clock can impinge on safe and healthy working conditions. A 2022 survey by the Centre for Future Work found that seven out of ten workers had been expected to work outside regular hours, and many of them had felt these demands added to their stress, anxiety and fatigue. About a quarter said out-of-hours contacts had disrupted their personal lives and one in five reported lower motivation and job satisfaction.
On the other hand, what options are there for organisations with a need for extended periods of responsiveness or prompt communication with people on the other side of the planet?
What are the new rules?
Among the many other workplace changes employers are facing, the ‘Closing Loopholes’ amendments to the Fair Work Act mean that when the new provision takes effect – in six months, or in the case of small businesses, 12 months – employees will have the right to ignore calls, emails or messages from their bosses outside work hours, where reasonable.
This extends to ignoring messages from third parties, such as customers, suppliers, students (or, for teachers, parents), or in the case of labour hire workers, host employers.
Advocates of the right to disconnect said it was not intended to block calls regarding shift availability, emergencies or critical work, but this is not explicit in the legislation.
The new provision gives employees the right to apply to the Fair Work Commission to issue a ‘stop’ order, similar to a ‘stop bullying’ order. If the stop orders are breached, civil remedies may be imposed, including the possibility of hefty fines.
Employers can also seek orders against employees to force them to connect.
An understanding of what is reasonable will depend on individual circumstances. The FWC will have the power to determine what contact is ‘reasonable’, taking into account factors such as the reason for the contact, the frequency and method of contact, and the worker’s remuneration, role, responsibilities and personal circumstances, possibly including family responsibilities.
For example, contact about availability of work may well be welcome, but being asked to work out of hours may or may not be considered reasonable.
What it means for employers
The new provision aims to support a healthier work-life balance for employees, but it may be challenging for small to medium-sized businesses.
Employers may need to review options for dealing with the logistical and management considerations raised by the new rules, particularly in the case of global businesses spanning multiple time zones. It is not yet clear how the change will interact with overtime and penalty rates.
There may also be tricky personnel issues to negotiate, for example, where it may not be reasonable to contact a new mother out of hours, but reasonable to contact another employee with the same workplace role but without the same degree of family responsibilities.
However, it is not necessarily an intolerable burden on employers. At least 56 enterprise agreements currently operating in Australia provide a right to disconnect, including agreements covering teachers, police officers and various banks and financial institutions. And research by the Australian HR Institute showed that 41 per cent of the 600 senior HR professionals and decision makers surveyed already had some form of right to disconnect in place, and the majority had no problems with it.
How will the rules be enforced?
The focus of the FWC’s consideration is expected to be on the reasonableness of the employee’s refusal to connect.
In many cases, employers may be able to justify contact if a worker’s high salary is considered to include reasonable overtime or if staff receive substantial personal allowances for such engagement outside normal working hours.
In some circumstances an employee’s role and responsibilities may mean the employee is expected to monitor out-of-hours contacts but not necessarily respond promptly, depending on the reason for the contact.
The need for employers to take staff’s family responsibilities into account will not be new in many businesses, as this will already be a part of routine interactions and expectations.
The FWC’s decisions in relation to stop orders will be keenly observed, however, especially if orders are directed against third parties such as customers or suppliers. Until a number of cases have gone through the FWC and the courts, there will be some uncertainty about the proper understanding of what is reasonable, and this may create some confusion.
Of course, firmer boundaries between work and home were the norm until quite recently, and decisions were made all the time about what could wait till the next working day, so the difficulties should not be too onerous.
