Employees welcome the ability to block the boss

In this era of digital connectivity, too many workers know what it’s like to receive emails and texts from their boss after they have clocked off.

Employees now have the right to disconnect from their bosses. Picture: istock

In less than two years, Tony Burke has succeeded in delivering three tranches of industrial relation laws that together represent the most significant changes to our workplace rules since Julia Gillard negotiated Labor’s Fair Work Act more than a decade ago.

But it is the Albanese government’s decision to support a right for workers to disconnect from their bosses that has cut through what can be arcane legalistic debate about industrial relations to capture the attention of voters.

And who can blame them? In this era of digital connectivity, too many workers know what it’s like to receive emails and texts from their boss after they have clocked off.

The Covid pandemic resulted in a loss of influence for micro-managing middle-managers as white-collar employees cemented their capacity to work from home on at least some days of the week.

But the shift to hybrid work has not slowed so-called “availability creep”, where technology keeps pressure on workers to be available all the time to answer emails, calls or simply deal with their workload.

France pioneered the right to disconnect in 2017 and Spain, Portugal, Italy and Belgium are among almost 20 countries that have taken steps to allow workers to ignore bosses after hours.

Across Australia, there are at least 56 enterprise agreements that contain right-to-disconnect provisions including deals that cover Victoria Police, teachers in Queensland, university staff and local government employees.

But the government decision to back Greens amendments to secure Senate passage of Labor’s broader industrial relations bill means the right to disconnect will be available to millions of Australian workers.

“It will provide desperately needed protections against the relentlessness of eternal contact through the digital technologies that we carry in our back pocket,” says Greens employment spokeswoman Barbara Pocock, who has been a leading workplace academic for decades.

So how will it work? Rather than an outright prohibition on employers contacting employees, workers will have the right not to monitor or respond to unreasonable contact outside of work hours where they are not compensated.

If a worker wants to stop unreasonable out-of-hours contact, they can seek to settle the dispute at the workplace level. If that is unsuccessful, they can apply to the Fair Work Commission for a stop order.

In assessing what is unreasonable, the commission will examine the level of disruption caused by the employer contact; the extent to which the worker is compensated for being available to work outside normal working hours; the nature of the employee’s role and level of responsibility; and their personal circumstances including family or caring responsibilities.

It will be reasonable to contact a worker if they receive an allowance to be on call. Where the contact is for a genuine emergency, about a shift change, or a key task that must be dealt with immediately, an employer would be on solid ground.

Pocock said it was about lifting up the rights of low-paid workers with little bargaining power expected to “stand up alone to their boss when they receive a call at 7am on Saturday morning, when they’re living on minimum wage, when they’re not getting any allowance for availability, when they’re not paid”.

“They are not an executive sitting on their phone talking to New York about a big deal. They’re an aged-care worker, they’re a retail worker, they’re a casual worker,” she said.

“They have no control, they have no back-up to say no to their boss. They may never get another shift if they even raise a question about it. This amendment will give those workers a bit of back-up which is exactly what they need to get some control and boundary around their working time.”

Under changes successfully negotiated by independent ACT senator David Pocock, the Fair Work Commission will be required to issue guidelines about the operation of the right to disconnect before it commences

The commission will be able to dismiss a right to disconnect application for a “stop order” on the grounds that the application is frivolous or vexatious; and it will be required to deal with the matter within 14 days.

The changes will be delayed by 18 months for small businesses, which will not be subject to the new civil penalties provisions.

The issues of fines for employers who breach right-to-disconnect orders has caused controversy and fuelled employer group claims that the new regime has been rushed into law without adequate scrutiny.

After initially canvassing fines for employers who unreasonably contact workers, Burke said that, instead, he supported a ban on workers being penalised for ­disengaging.

“So if a worker disconnects, if they decide they are not going to have their phone with them, if they decide they’re not going to be checking their emails, then absolutely no penalty can be brought against them,” he said.

“And that sort of protection would give you a way of doing it without fines on the employer.”

However, employers who breach stop orders by the commission face potential civil penalties of up to $18,000.

Fuelling business claims that the laws were rushed through, the government will have to pass special laws to stop bosses being exposed to criminal penalties for breaching commission orders after the Coalition refused leave for last-minute amendments to fix the issue.

“It is difficult to ­imagine a situation where criminal penalties would ever be appropriate. And certainly it’s impossible for them to be used in the near future because the provision doesn’t start for six months,” Burke said.

Employer groups said the need to fix the new laws underlined how the new right to disconnect had not been properly analysed for unintended consequences before passing the Senate.

Australian Chamber of Commerce and Industry chief executive Andrew McKellar said the new right to disconnect was “fundamentally a dopey idea”.

“It introduces a draconian new regime with potentially significant penalties for something that ultimately should be a matter of common sense,’ he said. “It creates a whole new level of complexity and red tape for business, and then to put penalties on top of that seems to be completely over the top.”

Business Council of Australia chief executive Bran Black said “everyone deserves to be able to switch off at home, though it’s really important to get the balance right here given people are now wanting more flexibility and to work different hours in different ways”.

“There has to be give and take – some employees value the ability to leave work early or arrive a little later than others with the understanding that they work at other times, so it’s about balance.”

Despite the complaints, Labor and union figures said the new right had won support from stressed workers sick of employer overreach. ACTU secretary Sally McManus said the new right was “fair and essential to maintaining a balance between work and personal time”.

Barbara Pocock says “technology that once might have promised freedom and a shorter working week has now, for so many workers, created a tether to the workplace in their phones and laptops, extending the length of the working week without being paid”.

“Being contactable at all hours of the day, every day of the week, even on holidays, pollutes our leisure time and our care activities, and erodes our personal lives. Workers need some protection and that’s what the right to disconnect will do.”