Disconnect laws ‘likely to make system less flexible’

Controversial ‘right to disconnect’ laws could expose employers to unfair dismissal claims as well as cause untold disruptions to normal operations..

Workers now have right to drop out.

Controversial “right to disconnect” laws could expose employers to unfair dismissal claims from aggrieved workers, with the move raising concern over appropriate levels of contact from the workplace, a legal expert warned.

The bill, passed by the Senate with support from the Greens, Lidia Thorpe and David Pocock, was sold as a reasonable way to reduce unfair and unreasonable contact from employers out of hours in the form of emails, texts or phone calls.

However, Clayton Utz employment law partner Amanda Lyras said the new workplace rules could potentially increase the risk of an employee claiming they were dismissed because they tried to exercise the right to disconnect.

“We have seen employees leverage these types of claims in other contexts, including the anti-bullying and flexible work request regimes,” Ms Lyras said.

The biggest grey area would be the level of contact deemed reasonable or unreasonable.

“We expect this will be based on a range of factors and will vary across industries, jobs and circumstances,” said Ms Lyras.

“It is likely a range of jobs will carry an expectation that employees work after hours, long hours or unusual hours.

“In this way, a right to disconnect may not be that disruptive in industries such as professional services where additional hours of work are required and compensated for, or for shift workers and frontline workers where being ‘on call’ is a necessity.”

Flight Centre chief executive Graham Turner described the proposed law as “overkill”. “From our point of view, I can’t see why people can’t disconnect if they want to anyway,” said Mr Turner. “It’s overkill from what I see. I can’t see the rationale behind this.”

Mr Turner said that if you’re a senior executive you have to accept calls as “you certainly would not get a promotion to that sort of level if you didn’t”.

Graham Turner.

Business Council of Australia chief executive Bran Black said the proposal was “extraordinary” given the peak body did not even know about the law this time last week. “People are raising legitimate concerns about how this type of change operates in practice,” Mr Black told Sky News. “What happens if you’re in WA sending an email after 2pm for example?” West Australian businesses, which operate up to three hours behind eastern states, fear operating hours could be slashed in half due to proposed laws that would ban phone calls and emails outside of work hours.

Mr Black said the right to disconnect – which appears to have been influenced by amendments to French law – ran counter to flexible work arrangements. “The French ended up legislating in 2017 but then Covid-19 occurred,” Mr Black said.

“And following Covid, we’ve had the rise of flexible work as people have realised that there is a way to balance work and family life, and we have more flexible workplaces as a consequence of that. It’s going to be enormously difficult to work through in practice and particularly in light of what we’ve seen with the Australian workplace and the changes that have occurred post-Covid.”

He said people wanted to avail themselves of flexibility and more people wanted to spend time working around their lives: “So for us, there is going to be a great unknown here, and what we’re concerned about is that these types of changes make the system ultimately far less flexible.”

Bran Black.