Psychosocial hazards and the 'right to disconnect' – employer implications

Employment lawyer to offer insights, tips for HR at upcoming Masterclass in Brisbane

Psychosocial hazards and the 'right to disconnect' – employer implications

As employers work to ensure requirements are met in mitigating the risk of psychosocial hazards in the workplace, it’s also important to consider the implications of changes to the legal frameworks.

This includes the proposal to amend the national employment standards to include the addition of the ‘right to disconnect’, says lawyer Alanna Fitzpatrick.

“Psychosocial hazards are present in every workplace, in every form of work and manner of engagement - these are hazards that are inherent in all forms of work,” says Fitzpatrick, partner at K&L Gates.

“The onus is on the organisation to take all reasonably practicable steps to prevent an employee from being exposed to the risk of injury, and that includes the risk of psychological injury.”

Is it right to limit contact outside of working hours?

The amendment to legislation proposed by the Greens gives workers the right to limit contact outside of working hours.

“Contact outside working hours gives rise to a number of psychosocial hazards,” says, Fitzpatrick, who will be speaking on the subject at the upcoming Employment Law Masterclass to be held in Brisbane this November. 

“When workers are receiving calls or emails outside of work hours, there's often a question of ‘Does this fall within the scope of my role?’ If there are multiple people receiving an email, who is required to respond? And when is a response required? All these factors can give rise to psychosocial hazards in the context of an after hours email or phone call.”

This also creates an additional area of potential dispute, says Fitzpatrick, in terms of determining whether employees are being properly paid.

“We are seeing a number of cases by unions and individuals alleging underpayments for working in excess of the standard 38 hours per week,” she says.

“The tension behind this is that we also have an overriding desire to provide people with flexibility and working hours that allows them to manage their own personal needs. That may result in people sending emails outside of core business hours or on weekends, because that accommodates their particular set of circumstances. A bill that imposes limitations on this activity may have unintended consequences.”

Consultation with workers essential to mitigate risks

Knowing how best to mitigate the risks can be challenging for employers, says Fitzpatrick, who stresses that one of the core requirements of managing psychosocial health is bringing it within a risk management framework.

“That means identifying the risks in a workplace, assessing them, implementing control measures to eliminate or mitigate those risks, and then monitoring the effectiveness of those control measures.

“At the heart of that process is a need to consult with your workers.”

The approach can vary according to organisational culture. Other factors that have historically come into play regarding what’s acceptable include a person's seniority and salary.

“The Fair Work Act imposes requirements of a maximum of 38 hours per week plus reasonable additional overtime. That question of reasonable additional overtime takes into account seniority and salary, among other things,” says Fitzpatrick.

“For a long period of time, there has been an implicit recognition that the more senior you are and the better paid you are, the greater expectations there are for someone to manage workload - which may include emails outside of hours.”

More recently though, there have been high-profile cases that indicate a change of tide, including that of Sally Rugg, a staffer of federal MP Monique Ryan, who commenced proceedings relating to working ‘unreasonable’ hours.

“We are starting to see white collar workers that historically were required to perform the hours required to do the role, starting to advance claims around hours of work,” says Fitzpatrick. “And there’s a rise in the extent that those hours of work are being derived from tasks like responding to emails and phone calls outside of working hours.”

Taking appropriate steps for appropriate hours of work

As a result, she says, there’s a shift in terms of a greater requirement on employers to be clear on the hours of work that are being performed and understanding the work being performed, and taking active steps to ensure that if those hours are becoming excessive, that is curtailed.

“This could involve developing protocols for people to be taking leave so they can have periods of downtime,” says Fitzpatrick. “It could mean implementing email systems during certain periods of time so that there is some limitation on hours of work, or introducing processes of having a work diary to assess how many hours are being performed, and then at certain thresholds, that person either given time off or the workload redistributed.

“Some of those control measures can be relatively simple and not costly from an implementation perspective, but will require a degree of engagement and management.”

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