Explainer: New gig, casual and ‘right to disconnect’ laws

Unwanted after-hours emails and calls can be ignored under new Labor/Greens laws. What does it mean for business – and the economy?

French workers already have a ‘right to disconnect’, as depicted in the Netflix hit series Emily in Paris, starring Lily Collins. Picture - Marie Etchegoyen/Netflix

In the Netflix smash Emily in Paris, ambitious American marketing go-getter Emily Cooper (played by Lily Collins) stuns her French colleagues by obsessing over work, even out of hours.

“It’s illegal to work on a weekend in France,” chides her colleague Julien.

He’s partly right – French workers have had a ‘right to disconnect’ for 8 years, along with protections against Sunday shifts – and now Australia’s joining the club.

What is the right to disconnect?

It means when you see your boss calling, or hear the ping of an email while you’re trying to cook dinner, you have the choice to just ignore it.

Employers and employees might have very different views as to whether or not this is reasonable – and that’s the crux of some big changes presently sweeping through federal parliament.

France also has rules restricting work on Sundays to only certain sectors like hospitality and healthcare.

Australia isn’t going that far, but the right to disconnect is now part of Australian law, thanks to a huge package of industrial relations reforms parliament has just agreed on.

Workplace Relations minister Tony Burke has scored a huge win, successfully negotiating the passage of the laws by incorporating – in a modified form – ideas suggested by influential Senate crossbenchers and the Greens party.

The Greens came up with the ‘right to disconnect’ idea.

They wanted an outright ban on bosses contacting workers out of hours.

But the Senate crossbenchers negotiated that down, so instead workers get a right not to monitor or respond to unreasonable contact out of work hours if they’re not being paid to do so.

Small businesses also get extra time to adjust to the new laws and additional help from the Fair Work Ombudsman.

What are the IR reforms?

Anthony Albanese came to power in May 2022 promising to reform Australia’s industrial landscape – in particular, to protect workers in the gig economy and other sectors they said were being exploited.

This is a sacred topic for the Labor Party.

Labor was founded in the union movement and the big unions are still immensely powerful within the party.

The first half of the changes happened in late 2022. That’s when the Government introduced some controversial changes like enabling multi-enterprise bargaining. That’s where different employees working for different companies can choose to negotiate with their bosses together. Let’s say there were dozens of bakeries across Brisbane, and all the bakers agreed they wanted certain conditions and pay – well, the 2022 laws made it possible for their unions to negotiate together with the bosses.

The big employer groups didn’t like it, saying – among other things – it could be unfair for small businesses that would suddenly find themselves negotiating not with their own employees, but with lawyers employed by a powerful union.

One of the goals of those 2022 laws was – as the PM kept saying during the election campaign – to get wages moving.

So far, it hasn’t worked.

What changes for gig economy, casual and labour-hire workers?

Now Tony Burke is back before parliament with another law he says will close loopholes in the system.

Those loopholes, according to the government, include when employers use gig arrangements – like food delivery drivers or truckies who are paid as contractors.

Casual workers are another so-called loophole, and so is labour-hire, where an employer uses another company to bring in staff for a short term project like construction or roadworks.

The unions say those arrangements are all a tricky way for employers to avoid hiring permanent staff with all the entitlements like holidays and sick leave.

The employers say gig arrangements are good for workers – that they allow them more flexibility, or in the case of casuals, to earn huge penalty loadings if they choose to work on Sundays or public holidays.

The Government’s big changes go like this:

• Same job, same pay for labour hire workers – so if you’re brought in to spend three weeks digging foundations on a building site, you get paid the same amount as a permanent employee doing the same work.
• A clear definition of a casual job – so a boss couldn’t treat as a casual a person they have working effectively in a permanent position.
• Minimum gig-economy conditions for long-haul drivers and people effectively working as employees in the gig economy like DoorDash or UberEats.

What changed in the Senate negotiations?

Crossbench senators including David Pocock negotiated changes to the Government’s plans said the crossbench also won two big concessions from Labor: the gig platforms like Uber get what he described as a fairer way of testing who’s a genuine employee and who’s a genuine contractor.

This was aimed, according to Pocock, at ensuring “platforms can continue to operate and innovate with a fairer way of testing who is employee-like and who is not.”

Pocock also won a deal on casuals: so now, if you want to remain a casual, you can – and if you want to convert to permanent, the boss has a right to refuse on fair and reasonable grounds.

The gig worker amendments mean the Fair Work will have to consider the minimum standards for a whole class of businesses, rather than naming individual businesses.

What does it mean for businesses?

Dennis Shanahan says: “I think business will continue to be worried.

“What we’ve seen over the course of the Albanese government, is that initially business, was quite compliant. They were even complacent.

“They went quite quiet in the first half of the term. And then they started to realise that after Labor got its first tranche of industrial relations and pay conditions through that think that they were just going to keep going and they were going to get more and more radical, more and more demanding, and giving more power to the unions.”

How did the laws get through parliament?

In the House of Representatives, where the main action of government happens, Anthony Albanese has a one-seat majority. That means he doesn’t have to negotiate with anyone to get things done: Labor has enough votes to pass the government’s legislation.

In the Senate, it’s a different story. Bills can’t become law until they’re also passed by the Senate, and that’s where Albanese has to negotiate. To get his laws passed, he needs the Greens’ 11 votes plus two more.

The crucial independents are former rugby player David Pocock – he’s a ‘teal’ independent, the Jacqui Lambie Network’s two senators, and Lidia Thorpe, who used to be in the Greens and is now an independent.

In this case, the two crucial votes came from David Pocock and Lidia Thorpe.

The Australian’s national editor Dennis Shanahan tells The Australian’s daily podcast The Front: “Tony Burke has realised the political consequences, how to play the political game of the Senate.

“Now he’s done it in a much better way than Scott Morrison and his government ever did.”

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This is an edited transcript of our free daily news podcast The Front. Catch us wherever you listen to podcasts, and in The Australian’s app.