Unplugging the Workday: Understanding Australia's Right to Disconnect Legislation
[00:00:00] Welcome to the Aligned and Thriving Podcast, the best place to get the support you need to turn your working life from a struggle to a success. I'm your host, Judith Bowtell, and I'm a former burnt out executive and eventually reinvented herself as a creative career and leadership development coach. This show is for anyone who is struggling with having time for yourself amongst work, family, caring for others, medical issues, community needs, and even the work of staying in touch in a digital age. So this is for anyone who has seen the cracks in their life and wants to turn things around. Maybe now. Don't miss a single episode, so subscribe to Aligned and Thriving now to unlock a world of inspiration and practical strategies. And if you have subscribed, why IG account or join our community to navigate your own way to a happier, healthier world. And healthier working life.
[00:01:01] Today I thought I would look at the Right to Disconnect Laws recently passed in Parliament this month, and what it means for Australian workers, particularly those of us who are struggling with work life balance. I remember when I was an executive in government, the expectation was that we would be available by phone between 7am and 10pm every day for urgent matters, especially media inquiries and issues. It meant taking my phone to the gym and on runs and occasionally trying to sound professional whilst pulling my dog away from a dropped kebab or a too friendly toddler. I must admit, I didn't get that many calls. Screen and the arts are not very controversial and stay off the front page. My colleagues in transport, or health, and education were not so lucky. What was worse for me was this expectation that you would just hang back late to catch the higher ups that you needed to brief about urgent matters or get essential decisions. Stuff you could not do by email, or just really had to be discussed face to face to resolve. My right to disconnect was caught up in this, I guess. As it was an accepted practice and leaving work after 9 or 10 p. m. was not unusual. Pretty exhausting, but not unusual. Of course, this is how I became burnt out by my work and had to make big changes for the sake of my mental health and overall well being. Shortly after I left that job, I was diagnosed with major depression, or what was chronic depression, and could see I was a typical high functioning depressive, which meant I masked my symptoms at work. and then collapsed at home from the effort of doing so. This type of working life is unfortunately pretty common. Mobile access to multiple communication and collaboration tools, plus balancing and work across different time zones creates an environment where we are always on and never really get away from work. So, I'm curious about what this right to disconnect means in real terms, beyond a bit of virtue signalling. What is it meant to achieve and how we got there? So come with me now for a sort of deep dive into the what, how and why of this news workers right, or not so new as some are arguing. And what it means for you.
[00:03:23] Now, a big disclaimer before we get into it. I am not a lawyer, never have been, probably never will. So none of what I say should be taken as any form of legal advice at all, or any sort of advice at all in general. What I am is someone who used to work in government policy development. That was a fair while ago, I admit, but hopefully I can give you a useful summary on how we got this legislation introduced and passed and what it might mean for employees and employers in the future. So what is the new legislation and how might it support work life balance? If you Google this, you will find hundreds of articles written by every single employment law firm in the country. I've read a few of them. They're kind of saying the same types of things depending on how much they align with the employers or how much they employers align with the unions. So make up your own mind there. I'm reading from or I'm taking quite a bit of what I'm about to say from the Herbert Smith Freehills website. And I'll have a link on the show notes.
[00:04:28] The closing loopholes Bill part two which is what included the new Greens proposed laws, giving employees a right to disconnect was passed in parliament on 12th of February, 2024, and is currently awaiting Royal assent. This new right will commence six months after Royal assent, which is when the governor general signs it into law. And that's probably around July or sometime in the second half of the year. Under the new Right to Disconnect legislation, an employee may refuse to monitor, read, or respond to contact or attempted contact from their employer or a third party outside of their working hours unless the refusal is unreasonable. Unreasonable is not necessarily fully defined here, but these are some examples of what would be considered unreasonable. So it will be unreasonable to refuse contact if this is required under a law of the Commonwealth, State or Territory. Otherwise, when the refusal is unreasonable, will depend on a range of circumstances specific to the working relationship, including the reason for the contact or attempted contact. So I guess, is it an emergency? Is it something that cannot be delayed? Does it have an absolute time crunch on it? For example, if your warehouse is flooding or your client the roof has blown off or something, maybe that is considered. A reasonable request. How the contact is made and the level of disruption it causes the employee. So maybe the unreasonability is if you're rung, you're texted, your Whatsapp is, Pinging your other communication messaging services are all up in arms. And so maybe even somebody's knocking at your front door. So this is a, would be considered, I guess, unreasonable or it would be, not be unreasonable to deny that request. The extent is this is interesting the extent to which an employees remuneration compensates them to remain available to perform work during the period in which the contact is made or work additional hours outside their ordinary hours of work.
[00:06:49] Now, as I said, I was an executive in the public service. I've been the CEO of organisations but in senior management roles. And there is a expectation in those roles that you are at a level of seniority and responsibility, and you are being paid enough that to do some out of hours work would not be unreasonable. So things like that may mean attending meetings after hours attending events. As I said, that sort of culture of, could you just work back a few hours so we can talk about this anything like that. So that is sort of consider part of the package that you'll be available for those type of requests, and it would be unreasonable for you to deny doing those or refuse to do that.
[00:07:35] The second point, the next point under this, which is about one of the other circumstances is the nature of the employee's role and the level of responsibility. As I said, as the CEO of an organisation and there was a potential work safety issue I would need to be aware of that. For a while, I ran a small theatre company which worked with people who had lived experience of homelessness, Milk Crate Theatre, and if there was a performance on, even if I wasn't there I didn't have to go every night, but even if I wasn't there, and an issue arise, I would expect it to be reported to me straight away, and of course, those other workers in the company who were not as senior as me, or so basically everybody else they would be compensated for that time in time in lieu, but I would just be considered, just be there as part of my duties. That is probably very common for very, lots of people would relate to that. And then this is also something where if the refusal is unreasonable, could relate to somebody's personal circumstances, including family or caring responsibilities. So if you're at home with toddlers and children and all the family caring responsibilities it may not be unreasonable for you to refuse calls between six and nine. However for me who doesn't have children maybe that would be considered unreasonable. The fact that I may want to be doing other things in my private time which just could include lying on the couch and catching up with my series would be maybe it would be considered unreasonable. I mean, I think that's an interesting thing to also that will have to be part of these fair work judgments.
[00:09:13] A few other things to note, small business employers will be exempt from these provisions for 12 months following the commencement of the new laws. So that gives small business a bit more time to sort it out. Exemptions of small business, I'm not sure under fair work, sorry, I should have checked, but I believe it's under either 100 or 200 employees.
[00:09:31] Exemptions correct me if I'm wrong exemptions also apply for matters that might involve Australia's defence, national security or an operation of the Australian federal police. Which sort of makes sense. I was curious as to why it didn't mention national emergencies, fire, flood other things that may need to be it would be unreasonable to refuse a request to be contacted if your workplace is being impacted by these things, but maybe that's picked up somewhere else.
[00:09:59] So, overall, these changes to the Fair Work Act are designed to protect employees who choose to ignore attempts by their employers to contact them after hours. Where this is not unreasonable as defined in what we just went through. That you won't be subjected to detriment. That means you can't be disciplined in your performance reviews for this. You cannot be denied bonuses. You cannot be denied promotion on the basis of the fact that you didn't answer calls after your working hours. So this legislation has the potential to change quite a lot of things about how employers and employees work together, especially how they approach communication outside of ordinary work hours. And I would say also inside ordinary work hours. If you take away the option to contact somebody after the day has finished, you're going to need to be more cognisant of that. And perhaps focus more on getting that stuff done within working hours. With my example, if we'd had these kind of laws and I was more junior and didn't have all those other caveats about my working after hours, but say I had a strict end of day five o'clock then maybe the seniors may have made more time within their diaries to deal with internal matters or delegated those decisions further down the line. So they didn't necessarily have to be across every little thing it might've forced us to start looking at some of those more ways of making things more efficient within our working day instead of just allowing the boundary to slip and to extend into the evenings. The other thing about these new laws is that in some ways it codifies current practices where businesses have already established a right to disconnect policies or individuals have negotiated expectations around out of hour work with their managers. The National Employment Standards, which are fall out of the fair work do already set what are standard working hours. So some of this is already in our existing legislation. This, I guess, just adds another layer. And this isn't a bad thing, as it sends a signal that workers have the right to switch off and have a personal life.
[00:12:19] Of course, some employers are concerned that it's just going to add more complexity and uncertainty to a matter they've already fixed. Up to 40 percent of businesses, according to a survey by the Australian Human Rights Institute, this is a non issue. They already have their policies in place. And they are concerned that the test of what is unreasonable, for example, will need to be expanded as cases are referred to the Fair Work Commission and a body of case law established. This creates the environment of uncertainty. And it is probably worth noting, I guess I have to that the leader of the opposition, Peter Dutton, has said that the LNP will repeal, it's hard for me to say, this legislation when elected. And there is already talk of some amendments being needed as it was a bit of a last minute addition to the bill as part of the negotiation between the ALP and the Greens on the entire omnibus of amendments that went through as part of this closing the loopholes legislation.
[00:13:19] Why did the Greens want to make this additional amendments and were able to convince the Albanese government to support it? I've not been a fly on the wall to negotiations between Barbara Pollack of the Greens and Tony Burke's office, Government's Minister for Employment, but here is some of the evidence that they may have used to back up their arguments. Last year, that's 2023, the Senate Select Committee on Work and Care drew attention to what they were calling availability creep, which is where employees are increasingly expected to complete work outside of work hours.
[00:13:56] They noted that smartphones have made it easier for managers to contact workers anytime. Yep. And they also noted that the shift to remote working during the COVID pandemic caused the boundaries between work and personal life to disintegrate further. There are other issues that get into here about privacy, about responsibility about safety, et cetera. There's a whole lot of things here, but I guess one of them has been this availability creep. According to a 2022 report by the Center for Future Work, 71 percent of workers surveyed had worked outside their scheduled work hours, often due to overwork or pressure from managers. 71 percent of workers. That's a lot. And this led to increased tiredness, stress or anxiety for about one third of the workers surveys, disrupted their relationships and personal lives. for about a quarter of them, and considerably lowered the job motivation and satisfaction for around one fifth. Another survey done at the beginning of 2023 by the New Daily found that 50 percent of Australian workers reported as being exhausted. And it was just published, I think in Women's Agenda, that nearly three quarters of Australian women workers reported that they felt burnt out at some stage last year. So in 2023, this is a chronic and national emergency really on the state of work here in Australia. And so. These measures are incredibly important, but I guess the main thing is to make sure that these, as I said, are not just virtue signalling but actually do make a real impact on how people are able to manage their working hours and the impact it has on the rest of their life. Parliamentary inquiries have also highlighted the negative consequences of working outside scheduled hours for mental and physical health and productivity and turnover. So it's not just affecting the individuals. It's also affecting the issues of capital, the issues for the businesses, the productivity and turnover availability of creepers led to significant unpaid overtime takes away from the whole idea of a fair day's work for a fair day's pay. I won't get into issues about wage theft at this point. That's a discussion for another day. The impacts are especially acute for certain groups of workers. Those on insecure contracts lack the power to resist availability creep and those with unpaid carer responsibilities are likely to experience intensified work life balance. Mostly women, people of colour, but mostly women. So if you are one of those women who felt that they burnt out last year, you're not alone, but it's also there are reasons, way outside your control, why this happened.
[00:17:05] The right to disconnect provides a solution to these challenges, at least according to the legislators. The Senate Select Committee on Work and Care found such a right can provide rosters with what they call roster justice by giving more certainty over their working hours. Many countries in Europe, Asia, North America and South America have already established laws or regulation limiting employers contacting workers outside work hours. If one of these or have had experience of working in one of these countries, please let us know of how it worked what benefits you've enjoyed from that, and maybe what challenges there are as well. And there are, according to the Australian Human Rights Institute, at least 56 enterprise agreements currently operating in Australia that provide a right to disconnect. This includes agreements covering teachers, police officers, banks, and financial institutions. Again, if you're working in an organisation or an industry that has this right to disconnect as part of your enterprise agreement, again, please let us know how that is working for you or not working for you. It'd be really please to know.
[00:18:20] Back in 2022, Sally McManus, who's the secretary of the ACTU, said that protection for workers rights to disconnect outside of working hours is necessary, not only for workers mental well being, but to also make sure that workers with caring responsibilities, who are mostly women, don't fall unfairly behind their colleagues in terms of pay, advancement, and promotion. And this was backed up by unions representing not just office based workers, but also teachers, police, many more.
[00:18:53] So where does this leave us? It seems that availability creep is a far reaching problem, with one side of the equation saying we can just sort it out individually or on an organisational basis. And then the other side says that there are many times that management or clients will abuse the relationship with the worker and make unreasonable requests. Up until now, it has been the worker who needs to enforce a clear boundary. If they can around availability and what might sound like simple requests. What the change in legislation does is give the worker permission and power to resist and say no to requests for contact and communication outside work hours, unless it would be considered unreasonable. They have this power because it is no longer legal for the employer to use that as a reason to punish the worker or to deny them promotions or other opportunities. So workers now have the protection of a law for holding a boundary and Not to be punished for that. And that sounds great. Really, truly great. But in practice, does that change anything? If your manager is one of those people who just asks you to do a little thing after work and you've learned to tolerate it, will it stop you checking your phone on the way to work just to get ahead of things? Will you still read your emails when you're on holidays? And will it keep you from your laptop on the weekends when you have nothing else to do? What more will it take for us to really learn how to disconnect daily from work and turn our attention to the other aspects of our life?
[00:20:49] So let us know in the comments on our Facebook page or on LinkedIn or IG or wherever you're following us.All of the links will be below, as well as the articles and the legislation referred to in this page. We will be revisiting this in future podcasts, as well as the right to work from home and other legislative changes to make work fairer for all. And if that is something that interests you and you want to stay up to date, make sure you subscribe to our podcast on Apple Podcasts, Spotify, or wherever you get your favourite content.