The Australian parliament has taken a new step forward in ensuring worker’s rights for its citizenry. The government has passed legislation that would institute the worker’s right to disconnect from their workplace after their contractual hours. The new law would prevent overstepping employers from contacting their employees beyond working hours through calls, messages, emails, messenger pigeons, smoke signals, or telepathy. This is especially important in an age where the accessibility that technology provides has led many bosses to believe that being available for communication at all hours of the day is a contractual obligation. This tends to instil a lack of definition between working and non-working, often leading to the exploitation of hapless workers. Australia is not the first country to take this step, and if the growing trend is any indication, it will not be the last.
The new law is part of a host of changes to industrial relation laws, titled the Fair Work Legislation Amendment Bill, 2023. The amendment states that “an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable”. The word ‘unreasonable’ is the sensitive word here, of course. It is not completely outside the realm of possibility that an employer might get in touch with their worker after hours for a legitimate reason, which the law cannot disregard entirely. The Australian Minister for Employment and Workplace Relations elaborated on what would not constitute reasonable contact.
“But if you’re in a job where you’re only paid for the exact hours that you’re working, some people are now constantly in a situation of getting in trouble if they’re not checking their emails, it is expected to be working for a whole lot of time that they’re not being paid. That’s just unreasonable”.
The law will use several indicators to judge whether an attempt to communicate was reasonable. These include overtime work compensation, the reason that prompted an attempt to get in contact, as well as the disruption it caused to the employee’s day-to-day life.
The right to disconnect law is not about penalising employers for making reasonable contact with their workers outside of normal hours. Current workplace and business trends mean that many companies deal with international customers/clients who operate in different time zones, which could in turn necessitate communications that are outside of strict contractual terms. According to the Australia Institute’s Centre for Future Work for example an average worker is exploited for 5.4 hours of unpaid work each week. From the worker’s point of view, this amounts to over $100 billion in lost wages – or that amount in costs saved to employers. This is not a new phenomenon, of course, it’s just one that is gaining new dimensions with technological development.
Although the law is a progressive one, it is of course not without its critics. Perhaps unsurprisingly, these criticisms are not coming from the worker camps either. Australia’s Chamber of Commerce has come forward with its displeasure against the proposed amendment, saying that they could not “allow industrial relations laws to make it harder for hard-working business owners to generate the wealth we enjoy as a nation”. However, it is unfair to expect that exploited labour should pay for this wealth as well. Speaking to The Guardian, Chief Executive Officer of the CoC even implied – rather threatened – that such laws would prompt businesses to renegade from practices such as working from home.
“This sort of heavy-handed legislation risks taking Australia back to a rigid working environment that is undesirable for parents, especially women… This rigidity also undermines the case for working from home, which appeals to many employees with family responsibilities”
It is well established that working from home is mutually beneficial for both employer and employees, as well as for the communities they exist in in general. Implementing back-to-work policies would be an expensive penalty for businesses to implement.
Initially, the government appeared to be quite serious about protecting the rights of employees against exploitation. The penalties for violation even included jail time for employers found to be in violation. The parliament however has since intervened to ensure that the criminal sanctions of the legislation are removed. The legislation itself is expected to be met with no less than heavy opposition by opposing parties and business groups. The Business Council of Australia for example has expressed the very legitimate criticism that the passing of the legislation could have been more democratic—the process had not enjoyed the benefit of being subject to a proper debate before its passage. Every law and every party in a democratic system deserves a chance to be heard. The Council’s chief executive Bran Black himself argued that “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”.
As mentioned, Australia is not the first country to consider the worker’s right to disconnect outside of work hours. European countries such as France, Ireland, Italy, Portugal and Spain have already had similar laws in place to protect employees for several years. Belgium took steps to introduce the same principles in its legislature to protect civil servants in 2022, and several other countries are drafting the appropriate legislation as well.
(Theruni M. Liyanage)