Tuning Out: What Australia’s ‘right to disconnect’ law means for workers and employers

Australia will soon bring laws to allow employees to ignore unreasonable work calls and messages from their bosses after office hours. The “right to disconnect” is part of a series of reforms to industrial relations laws proposed by the Labor government. The Australian Greens party was the first to suggest this rule last year. As per Greens leader Adam Bandt, an agreement was reached between Labor, smaller parties and independents to support this Bill, Reuters reported. The legislation is expected to be taken up in Parliament later this week. What is the right to disconnect legislation? What are the arguments for and against it? Do other countries have such laws? Let’s take a closer look. Australia’s right to disconnect law The amendment proposed by Greens empowers workers to “refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable”, as per a Bloomberg report. While it does not ban employers from contacting workers out of hours, the legislation protects employees from being penalised for tuning out after work hours. According to the Australian government, these changes would protect workers’ rights and help restore a healthy work-life balance. “What we are simply saying is that someone who isn’t being paid 24 hours a day shouldn’t be penalised if they’re not online and available 24 hours a day,” Prime Minister Anthony reportedly said on Wednesday (7 February). [caption id=“attachment_13705722” align=“alignnone” width=“640”] Australia’s legislation protects workers from being penalised for tuning out after work hours. AFP (Representational Image)[/caption] The factors taken into account to determine whether a contact is reasonable include: the reason for the contact; the frequency of contact; how the workers are contacted; the nature of their job description; whether they’re being compensated or not; and the nature of their family responsibilities. “If … your job involves working with different parts of a business or with clients across time zones, then of course that will be part of your normal range of employment. Where you are repetitively asked to get up in the middle of the night and ring New York, and you’re actually on minimum wage, that is not reasonable,” Greens senator Barbara Pocock, who has been campaigning for the legislation, was quoted as saying by The Sydney Morning Herald. Employment minister Tony Burke from the ruling Labor party said that a majority of senators are backing the legislation. He said it will prevent “employees from working unpaid overtime through a right to disconnect from unreasonable contact out of hours”, reported Reuters. Speaking to ABC RN Breakfast, Burke said it was “completely reasonable” for employers to contact employees after shifts. “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.” If employees feel they are being contacted unreasonably, they should first flag this to their employers, Pocock said. However, if it remains unresolved, the workers can approach the Fair Work Commission (FWC) for a stop order. The legislation states that the FWC “may make any order it considers appropriate” to prevent a worker’s “unreasonable” refusal or to stop an employer’s punitive action against the employee, reported SmartCompany. If the employers fail to comply to FWC’s order, they could face financial penalties if the matter is taken to the Federal Court, according to The Sydney Morning Herald. Arguments for and against the Bill The COVID-19 pandemic greatly affected the way we work. As digital connectivity increased, many people found themselves working longer hours and being available even after office hours. Proponents of the right to disconnect argue it will protect employees from burnout and help maintain a work-life balance. Australia ’s legislation will prevent workers from being punished for not responding. According to the Australia Institute’s Centre for Future Work (CFW), workers, on average, do 5.4 hours of unpaid work each week. “That’s in excess of $100bn a year in lost wages across the whole economy. The problem of unpaid overtime is not new but it’s taking new forms. The boundary between your work and your life is getting fuzzier and fuzzier,” economist and director at CFW Jim Stanford told The Guardian. “Increasingly, because of technology, it takes the form of being asked to perform work-related tasks when you aren’t anywhere near work – at home, out and about, even when you’re on leave, because you can’t escape your mobile phone, your email and your WhatsApp.” [caption id=“attachment_13705742” align=“alignnone” width=“640”] Proponents of the right to disconnect argue it will protect employees from burnout and help maintain a work-life balance. AFP (Representational Image)[/caption] Mark Morey, secretary of Unions NSW, said that besides the right to disconnect, there should also be “a ban on unpaid overtime for people earning less than $150,000”. “Technology is more than a disruption to personal and family time. It’s the Trojan horse for wage theft. Implementing an unpaid overtime ban alongside a right to disconnect would have a powerful legal effect but also establish healthy new work norms and culture,” The Guardian quoted Morey as saying. However, there are concerns that the legislation could lead to other workplace disputes. Business groups say it is not needed and might result in the loss of jobs. Business Council of Australia head Bran Black told The Sydney Morning Herald he did not want Fair Work Commission’s interference to deal with the day-to-day activity of operating a business “and issues should be resolved in the workplace”. “Everyone deserves to be able to switch off at home, though it’s really important to get the balance right here given people are now wanting more flexibility and to work different hours and in different ways,” he said. Andrew McKellar, chief executive officer of the Australian Chamber of Commerce and Industry, said the legislation could affect women’s participation in the workforce. “This sort of heavy-handed legislation risks taking Australia back to a rigid working environment that is undesirable for parents, especially women. This rigidity also undermines the case for working from home, which appeals to many employees with family responsibilities,” McKellar told The Guardian. Countries that give the ‘right to disconnect’ France, Italy, Spain and Ireland have the right to disconnect laws to protect workers for a few years now. Several other European countries have similar rules. Portugal’s Portuguese Labor Code states that “employers have the duty to refrain from contacting workers during their rest period, except in situations of force majeure.” If a manager breaches this, they could be fined as it is deemed a “serious offense for employers to violate their employee’s privacy”, reported Forbes. In 2022, Belgium introduced the right to disconnect for thousands of its federal civil servants. With inputs from agencies