Workers will soon have the right to switch off from emails and phone calls outside their working hours from later this month, but it won’t be a “radical change” to the workplace, an expert said.
Stopping a requirement for answers to messages and pings from colleagues, clients and contractors will allow people to “reclaim a level of work-life balance”, according to the president of the Australian Council of Trade Unions Michele O’Neil.
The new laws will come into effect from 26 August for large businesses, and a year later for smaller enterprises.
O’Neil said the law would “give workers the right to not respond to unreasonable contact by their employer when they are not being paid to do so”, but it is unlikely many cases will end up with the Fair Work Ombudsman, an industrial relations expert said.
Employees encouraged to disconnect after-hours to prevent unpaid overtime. Source: Getty / AFP Contributor/AFP via Getty Images
Tim Capelin, Head of Employment Relations at Piper Alderman, told SBS News: “I’m not sure that it will result in some radical change.
“I’m expecting to see very few cases find their way to the Fair Work Commission. For those that do, the Commission will likely work with the parties to resolve it through conciliation.
“I think there will be very rare cases where an arbitrated outcome will result.”
What does the right to disconnect law say?
According to the legislation, ‘unreasonable contact’ will be measured by the nature and urgency of the reason for any call or email, the method of contact, whether the employee will be compensated for working outside of their ordinary hours, the level of the employee’s responsibility within the organisation and their personal circumstances.
For example, non-urgent communication via phone, likely considered more disruptive than an e-mail, may fall within the definition of unreasonable contact.
Right to request flexibility
The right to request flexible working arrangements came in under then-Workplace Relations Minister Julia Gillard in 2009 — a breakthrough for working parents.
The new legislation goes beyond the right to request flexibility by bolstering it with the option for arbitration if unreasonable disruptions occur outside of standard working hours.
“It has the potential of the employee having the right to take it to the Fair Work Commission and having the Commission impose an outcome on the parties,” Capelin said.
Right to disconnect elsewhere
The right to disconnect was first conceived by France’s supreme court in 2004.
It found that an employee’s failure to answer their work phone outside of regular working hours was not a valid reason for their dismissal.
The right to disconnect was codified in French legislation in 2016.
A 2018 decision of the same court, this time applying the legislated right, found that an employee was entitled to extra pay when asked to be available to take work-related phone calls outside of regular working hours.
The court fined the employer almost €60,000 ($100,000) for their failure to do so.
The French Ministry of Labour has since clarified the right to disconnect applies equally to telework as it does to other working arrangements.
Several other countries including Spain, Portugal, Germany and Belgium have followed suit by adopting a right to disconnect in various forms.
