Leave a message at the tone: Employee’s right to disconnect

On 20 March 2023, Mr Adam Bandt, Leader of the Australian Greens and Member for Melbourne, introduced into Parliament the Fair Work Amendment (Right to Disconnect) Bill 2023 (the Bill). The proposed amendment to the Fair Work Act 2009 (FWA) would see the right to disconnect added to the National Employment Standards (NES) with employers required to not contact employees outside of working hours with limited exceptions.

Those limited exceptions include emergencies, genuine welfare matters, or when employees receive an availability allowance to remain contactable during specific periods. For clarity, an “availability allowance” means an allowance for being rostered, or otherwise directed by an employer, to remain available to perform work during the period.

The Bill also specifies the activities which employees will not be required to perform once disconnected from work. If passed, the right to disconnect will mean that outside of work hours (unless they are receiving an availability allowance) employees are not required to monitor, read or respond to emails, make telephone calls or respond to any other kind of communication from an employer.

The concept of the right to disconnect is not new. It is working in practice in other countries and there are undoubtedly many organisations or leaders who already manage their teams and staff in a manner that is consistent with the principles of the right to disconnect. One example is the new enterprise agreement for the Victorian police force, approved in March 2020, which includes a right to disconnect provision. Similarly worded to the proposed amendments to the FWA, the provision requires supervisors and managers to respect an employee’s periods of leave and rest days, and that they not be contacted outside of work hours unless in an emergency, genuine welfare matter or they’ve received an availability allowance.

When considering the current shift in workplace culture throughout Australia, it is not surprising to see a push for the right to disconnect to be entrenched into the NES. It also comes at a time when remote work has become increasingly available through necessity and demand, such as being able to work from home through the pandemic or to provide flexible work arrangements.

The right to disconnect certainly lends itself to an interesting debate. Looking into the topic and the current engagement in the community, some agree that this is a practical way to manage common psychosocial hazards that are a direct result of high job demands, especially in a climate where prioritising mental health is centre stage. However, others argue that certain industries and job titles come with a particular “on demand” nature and that it essentially “comes with the territory” and this goes well beyond the legal industry.

Claims of excessive workloads and work hours are seen across multiple industries. In a recent article, our team highlighted two cases where employees filed claims against their employers for being required to work unreasonable work hours. We are in a time where the courts have finally had to decide on what is considered “reasonable” additional hours. It will also create a tricky scenario for global businesses who will need to balance the right to disconnect with employees who work in roles that manage global teams across different time zones.

Whilst we can all agree that mental health is of utmost importance, it will be interesting to see how this change (if passed) is implemented in particular industries and workplaces. It certainly raises some interesting questions from an employment perspective, such as:

• does an employee’s “hours of work” include reasonable additional hours that have been agreed to or is it restricted to the 38 hours per week pursuant to section 62 of the FWA?
• should the right to disconnect be built into, or acknowledged, in employment contracts?
• how are employers expected to manage clients who may be contacting employees outside of their working hours? Should employees be directed to ignore client calls outside hours of work?
• can employers require access to employees’ work email accounts to ensure emails are monitored when the employee is on leave?
• can a salary package that already compensates for a requirement or understanding that you will be available on demand, qualify as already paying an availability allowance?
• can your business afford an additional allowance for employees you need available outside of work hours?
• how will your business decide which employees to pay an availability allowance to be available? Could your decision leave your business open to discrimination claims?
• how will your business deal with and respond to complaints by employees who are directed to be available, and paid an allowance, but do not want to be available? How will you ensure your managers do not inadvertently take adverse action against employees who make complaints?

Whilst we must wait to see if the Bill will pass through Parliament, it is a good time for employers to start thinking about how such a change could be implemented in their business.

If you have any questions about the right to disconnect, please get in touch with our national Workplace Relations & Safety team below.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Rachel Drew

Keisha Currie

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