There is little dispute that employers need to provide safe workplaces. Laws passed over the last few years dealing with psychosocial hazards provide the right framework for business to develop work practices and procedures suited to its environment that protect a worker's psychological wellbeing.
So why is there a need for a "right" to disconnect in the Fair Work Act 2009 (Cth)? There isn't.
The language of "right" is unhelpful. It invites conflict, dispute and resentment. Ignorantly, some media has described the new laws with headlines like, 'Now you can happily ignore your boss after hours'. For business, welcome to another area for contest and dispute in workplace relations – a theme prevalent in recent legislative amendments.
In this article, we examine the new provisions providing a "right to disconnect" and explore what it means for business.
A right to disconnect
The Fair Work Legislation Amendment (Closing Loopholes No 2) Bill passed the Senate in the Federal Parliament, with it introducing:
- a requirement for modern awards to have a right to disconnect term
- a free-standing right to disconnect.
The FW Act will contain a proposed new s 333M which will contain two rights for employees:
- An employee may 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.
- An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee's working hours unless the refusal is unreasonable.
Section 333M(4) confirms that these rights are "a workplace right within the meaning of Part 3-1" of the FW Act. An employer that takes adverse action against a worker exercising those rights will be exposed to a general protections claim, with civil penalties and damages.
As is apparent, the right hinges on the concept of unreasonableness. In determining whether a refusal is unreasonable, s 333M(4) says the following must be taken into account:
(a) the reason for the contact or attempted contact;
(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
(c) the extent to which the employee is compensated:
(i) to remain available to perform work during the period in which the contact or attempted contact is made; or
(ii) for working additional hours outside of the employee's ordinary hours of work;
(d) the nature of the employee's role and the employee's level of responsibility;
(e) the employee's personal circumstances (including family or caring responsibilities).
If a dispute arises about a refusal, then the dispute must be discussed at the workplace level before referral may be made to the Fair Work Commission for resolution. After hearing the matter, the Commission may make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the employee continuing to unreasonably refuse contact after hours, to prevent an employer from taking disciplinary action against an employee or to prevent an employer contacting the employee after hours.
An unhelpful law
It's not hard to imagine flaws in this new law.
A manager calls a worker for critical information. A client calls in urgent need for assistance. A worker refuses to even take the call. Business is lost or harm caused because critical information could not be provided.
A safety or medical emergency occurs. A worker needs to be contacted to help manage the immediacy of the situation. A worker refuses to even take the call. Someone is seriously injured or dies.
Yes, you can in the coming days try to resolve the dispute at the local level or lodge an application with the Commission. But the business cannot be compensated. A client is lost or irreparable harm suffered.
A worker will view their refusal as reasonable; after all, they have a "right" to disconnect. Some will say that if there is an after hour need for work then someone should be hired to cover that work. Reality check in real business operations – isn't it hard to find good labour at the moment? What about the knowledge only possessed by the worker you need to contact? Too bad.
A dysfunctional law.
If the worker does not take the call, how will they even be able to assess if their refusal is unreasonable or not. The law does not help workers but rather exposes them.
Let's discuss the reverse. A manager persistently calls a worker outside of hours. The worker already has real options (and conversely the employer obligations), including:
- They can lodge a complaint with the workplace, protected by the workplace right to complain.
- They can lodge a complaint with a health and safety representative, the union and or SafeWork relying on safety laws, like the Code of Practice: Managing Psychosocial Hazards at work.
Remember, a breach of work health and safety laws is subject to improvement notices, prohibition notices and even criminal charges. Not insignificant laws.
The implications of this new law go further.
A worker who constantly exercises the "right to disconnect" may create resentment amongst others and create division in the workplace. Others carrying the burden will be unfairly impacted.
Pay increases and promotions are well deserved by those workers who are committed to the business and go that extra mile. Get ready for complaints from those who regularly exercise the "right to disconnect" that they are being disadvantaged by not getting pay increases or promotions compared to their colleagues.
The law may also have a negative impact on workplace flexibility. If a worker is able to not respond to genuine ad hoc requests after hours, where is the attraction in providing flexibility during work hours? Employment is a two way street.
And you can read it already. In adverse action / general protection claims, plaintiff law firms will recite every time their client was called after hours complaining that their client's dismissal was because they complained about those calls or their right to disconnect was denied.
What to do
While these new laws will not commence immediately, under existing safety laws, business needs to ensure they review work design and workloads. Most businesses already have strategies to cover work and client needs when employees take leave – these need to be reviewed for effectiveness. Are there other systems that you could introduce? For example, all emails sent after 8:00pm are only delivered 8:00am the next day, unless the sender selects otherwise due to some urgent pressing business need.
Employers may be well advised to develop a system whereby workers can at least receive some information to enable them to assess the importance and seriousness of the need to respond to after-hours contact. For example, no need to look at emails, unless a text message or phone call is made – then it is urgent.
And managers are trained to limit after hours contact to only urgent business need. Mental wellbeing training remains worthwhile to assist workers and managers to manage achieving a work life balance.
For employees paid above award minimum, employers may consider designating a part of salary specifically for being flexible and on-call after work hours. An indignant unreasonable employee can know that amount is at risk. If too bold, at least the contract will make clear that occasional after hours contact is expected given their salary and seniority.
And perhaps for employees who need to stay connected after hours due to the nature, seniority or professional nature of their role, have an open dialogue for the notification of pressing personal circumstances where after hours contact should be avoided.
Regardless, businesses need to monitor working hours to ensure no work overload and regular discussion with employees should be had and documented about workload and work balance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
