Bosses to face penalties if they fail to stop calling workers after hours

Workers can take their bosses to the Fair Work Commission to stop being harassed after hours and employers could even incur fines or criminal sanctions if they continued to make unreasonable contact, under new laws locked in by Labor and the Greens.

But employees will be barred from “vexatious” use of their new right in amendments negotiated by independent senator David Pocock in return for his crucial support for Workplace Relations Minister Tony Burke’s contentious Closing Loopholes industrial reforms.

Greens leader Adam Bandt and senator Barbara Pocock have secured Senate support for the right-to-disconnect amendment.Credit: Alex Ellinghausen

Greens leader Adam Bandt and Greens senator Barbara Pocock announced the party had locked in the workplace right, which gives employees the ability to ignore unreasonable contact from employers after hours, meaning the Senate looks certain to pass a package of changes relating to the gig economy and casual workers.

“When you clock off you’ll be able to switch off, thanks to the Greens, after a long push to protect people’s time at home and their time with their families,” Bandt said on Wednesday.

Barbara Pocock said the law would work in a “really straightforward way” by allowing workers who believed they were being persistently contacted by their employers after hours to take the matter up with them first.

“If that doesn’t work, and your employer, for example, persists in asking you to do something which you believe to be wrong and unreasonable, then you can go to the Fair Work Commission and they will have a look,” she said.

“If the Fair Work Commission judges that your employer has behaved unreasonably, they can then make the employer, via a stop order, stop that behaviour. Now, if the employer then proceeds to breach that stop order, there are ways in which the commission can enforce it.”

The commission says anyone who breaches its orders may be criminally liable and may receive a financial penalty if the breach is pursued in the Federal Court.

Barbara Pocock said the Greens had included factors that could be taken into account in deciding what kind of contact was reasonable: “How often you are contacted; how you are contacted; or the nature of your job description; whether you’re being paid or not; and the nature of your family responsibilities.”

She said certain jobs necessitated out-of-hours contact, including her own. “What’s reasonable in a retail sector will be very different from what’s reasonable in a hospital,” she said.

The right to disconnect is already law in countries such as France and Germany and has been included in police and teacher enterprise agreements in Australia.

Employment experts have likened it to working-from-home rights as employees seek better conditions to suit pervasive online communication.

Prime Minister Anthony Albanese said on Wednesday the right to disconnect was already available in many companies. “What we’re simply saying is someone who’s not being paid 24 hours a day shouldn’t be penalised if they’re not online and available 24 hours a day,” he said.

But Australian Chamber of Commerce and Industry chief executive Andrew McKellar labelled the condition “a silly idea”.

Prime Minister Anthony Albanese says workers who are not on 24 hours a day shouldn’t be penalised if they’re not continuously available.Credit: Alex Ellinghausen

“Of course we need to have balance … but the idea that you can regulate for common sense through legislation like this is fundamentally flawed. We don’t support it. We think that that is something that again is only going to add to complexity and increase the risk of litigation in the future,” he said.

“It’s going to become a matter of disputation in some cases, so where the employment relationship is already breaking down, this is something where we’re going to see more claims in the Fair Work Commission.”

Burke, the workplace relations minister, last year struck the deal with the Greens to include the right to disconnect and bolster the rights of employees in drawn-out wage disputes to pass the second phase of his Closing Loopholes legislation. He said on Wednesday the passing of the latest reforms would help casuals convert to more secure, permanent work, introduce world-leading standards for food delivery riders and deliver safety improvements for the trucking industry.

The make-up of the Senate meant two more votes were needed to pass the bill, with the government in negotiations with crossbench senators over a series of tweaks to the legislation. Former Greens senator Lidia Thorpe declared on Wednesday morning that she had given her support in return for greater protections for casuals, but did not provide details.

Lidia Thorpe has declared her support for the government’s industrial relations reforms.Credit: Alex Ellinghausen

“It is important to improve workers’ protections, especially for those in the most insecure and underpaid sectors, and to create more supportive and sustainable working conditions for everyone. This will ultimately benefit everyone,” Thorpe wrote on social media platform X.

Shortly before 6pm, David Pocock announced he would vote for the government’s reforms in exchange for concessions for employers in new casual worker protections and limitations on the scope of gig worker reforms.

In regard to the right to disconnect, the government must provide funding to the Fair Work Ombudsman to support understanding of the right by businesses; require the Fair Work Commission to issue guidelines on the new rules; and empower the umpire to dismiss an application for a stop order if it is vexatious or frivolous.

David Pocock told ABC radio’s RN Breakfast that workers “clearly” wanted the right not to have to respond to unreasonable contact from their bosses when away from the office.

“There’s a whole range of scenarios where it is totally reasonable if someone’s offering you a shift for the next day, or if it’s an emergency or something to do with workplace health and safety,” he said.

“But this [is] simply enshrining the right that if you have clocked off and you do not think it’s reasonable, you don’t have to respond, and then your employer cannot hold that against you, or use that against you.”

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