The right to disconnect in Australia came into effect late last month for businesses with 15 or more employees. But what Australia’s government deems a necessary protection for workers could prove a headache for employers, who must now navigate between complying and getting the job done. — Bloomberg
Glen Day employs 120 people at his chain of restaurants in Australia’s Gold Coast. Under the country’s new right-to-disconnect laws, he may have to think twice before contacting them after hours.
“It’s really a hindrance,” Day said, calling the regulations unworkable for employers in hospitality, where hours often run late and workers are rarely on a 9-to-5 schedule. “If someone calls in sick, you’ve got to ring around and find a replacement. We’re not supposed to bother them at home, but for us that’s impossible.”
The right to disconnect in Australia came into effect late last month for businesses with 15 or more employees. It came after the Australian Greens party won support for the legislation from Prime Minister Anthony Albanese’s Labor government. It also underscores the global push by labour-friendly policymakers to empower workers who are constantly connected in the digital age.
Similar to existing French rules, Australian workers now have the right to refuse to respond to unreasonable after-hours contact from their employer. If the issue can’t be resolved at the workplace, the employee or employer can report the dispute to the Fair Work Commission. The regulator may impose orders on either party, with fines of as much as A$93,900 (RM273,252 or US$63,000) for employers who don’t comply.
But what Australia’s government deems a necessary protection for workers could prove a headache for employers, who must now navigate between complying and getting the job done.
Smaller entrepreneurs like Day, the restaurateur, to Wesfarmers Ltd, the second-biggest employer listed on Australia’s main stock market, have expressed concerns about the impact on business if workers are unreachable in an urgent situation – and what actually constitutes non-essential contact in a world of hybrid work arrangements. The Australian Chamber of Commerce and Industry has said the laws will dampen already sluggish productivity.
One of employers’ biggest questions is how the laws will apply to various pay and seniority levels, like managers who are called upon to deal with critical issues at all hours, or conduct business with other regions outside the standard Australian work day.
Clients have been surprised to find the right to disconnect applies to all employees – including those earning more than the high-income threshold, said Jennie Mansfield, a Sydney-based partner at law firm Ashurst who specialises in employment law and workplace relations.
“The key practical issue for many of our clients is how to assess when out-of-hours contact may be considered ‘unreasonable’,” Mansfield said. “The provisions set out, only in very broad terms, the factors to be considered in assessing whether an employee’s refusal to monitor or respond to out-of-hours contact is unreasonable, and expressly provide that ‘other matters’ may also be relevant.”
‘Switch off’
The right to disconnect aims to make the boundaries between work and personal time clearer as the proliferation of devices – and ramped up work-from-home setups after Covid – make workers reachable 24/7. The Australian Council of Trade Unions has heralded the regulations as empowering workers and reducing the burden of unpaid labour on families facing financial pressures.
What’s clear is that workers are burning out. A 2022 survey by The Australia Institute’s Centre for Future Work found about 71% of Australians had been asked to work overtime, with one-third saying it had left them stressed, mentally drained or physically tired. A separate poll conducted earlier this year saw almost 60% of voters support a right to disconnect.
It’s not just Australia. Eight out of 10 workers surveyed in EU companies with and without the right to disconnect policies reported regularly receiving communications outside their working hours, the European Foundation for the Improvement of Living and Working Conditions said last year. While some 70% of those whose firms had measures in place considered their impact to be positive, the mere introduction of a policy on its own was insufficient and required a range of accompanying measures, the organisation found.
More than a dozen countries have regulations protecting or recognising the right to disconnect – but the rules vary widely. France was one of the first to introduce such measures in 2017, allowing employees to ignore work calls or emails outside working hours without being penalised. In other jurisdictions, the regulations don’t go as far: Canada’s most populous province, Ontario, only requires employers to have a written policy on disconnecting.
In the UK, the “right to switch off” was at the heart of Labour Party promises to voters ahead of a landslide July election victory. But the country has stopped short of Australia’s move to enshrine the measures, with officials preferring to avoid hard legislation in favor of a code of practice for businesses.
Australian Employment Minister Murray Watt said he expects most disputes to be worked out between employers and employees in private. Only if both parties are unable to resolve a dispute over contact outside of office hours would it then be escalated to Australia’s workplace tribunal, the Fair Work Commission. But that can be a long and involved process. For small businesses with fewer than 15 employees, the laws won’t apply for another year.
And a cohort of employers in both hemispheres, including the Australian small business association’s founder and CEO, Anne Nalder, are calling for more “flexibility” between staff and managers rather than a law.
In London, Jeremy Frost, insolvency practitioner and director at Frost Group, concurred, saying most of his 14 employees are already on flexible schedules to allow for personal matters including school runs.
“I think good employers do not go out of their way to ruin the downtime of their staff. There’s always going to be bad employers and this legislation’s not going to get rid of that,” he said. “It’s far better to try and find ways of improving the general standard of employers.” – Bloomberg
