Should Australia consider the 'right to disconnect' law?

As more and more companies follow suit, should Australian employers mandate the progressive law?

Should Australia consider the 'right to disconnect' law?

Workers constantly tethered to their smartphones and laptops may understandably feel that they’re ‘on call’ 24 hours a day. Robert Stone, chief people officer at Wunderman Thompson, told HRD that if Australia wants to be seen as a progressive country in terms of employment and work-life balance, then it must seriously consider bringing in ‘right to disconnect’ laws across the board.

Many HR professionals have witnessed work-related stress and employee burnout from staff feeling as though they must remain constantly plugged into their workplaces just to keep their jobs. This is particularly the case for office workers across the country in both corporate and government roles. In Australia, the right to disconnect has only so far been applied to certain professions within Enterprise Agreements - such as law enforcement - which have been identified as having higher than average exposure to fast-paced and stressful work environments.

In Australia, the Victorian Police Force already has a ‘right to disconnect’ in place for their officers as part of their Enterprise Bargaining Agreement from 2021.

What is a ‘right to disconnect’?

The notion of a ‘right to disconnect’ in industrial relations refers to the human right of people to unplug from their workplaces after their nominated working hours. This includes not being required to check work emails or respond to work phone calls after they clock-off for the day.

What seems like a sensible and equitable policy, may be difficult to implement consistently and it also potentially raises questions for businesses about business continuity. The flipside of such a policy is also managing the wellbeing of employees who refuse to disconnect at all - and the workplace health and safety aspects around such a refusal.

Shivchand Jhinku, partner at Herbert Smith Freehills, explained some of the fundamentals about the concepts around the ‘right to disconnect’ and how that could be applied in a practical sense in the Australian workplace. Changes to Australian working practices over the past two years and the rapid rise of both remote and hybrid work modes have raised public awareness about the issue of employees spending longer hours being connected to their workplace.

Jhinku told HRD why he thought that disconnect law and legislative reform around this has not been a high priority for political parties, employers or industrial associations in Australia to date. He explained, however, that this could change if Australia decides to follow the examples of Spain, France, Portugal and more recently, Ontario, Canada, who have adopted ‘right to disconnect’ laws for all employees in their jurisdictions.

Read more: Right to disconnect: The remedy for WFH stress?

Jhinku thinks that a right to disconnect in Australia, “may be something that attracts more interest for some form of regulation in the future. Of course, employers that are engaging with their staff about this issue may proactively put in place arrangements that address this issue in the absence of legislative reform.”

He explained that were Australian policymakers to follow the path of France and Canada, then “it would be preferable to have federal regulation. State/territory regulation may mean that there are differences between jurisdictions, which will likely lead to additional complexity and compliance issues.”

The simplicity of federal regulation would also make it easier for HR executives to implement these policies consistently across each of the states and territories.

Is a ‘right to disconnect’ only relevant for digital communications?

HRD asked Jhinku whether a ‘right to disconnect’ would only apply to workers’ digital connections to their workplaces, and he provided some relevant examples of what this might look like:

“Traditionally, one of the arguments for a ‘right to disconnect’ was based on the difference between a ‘digital worker’ and a ‘factory worker, i.e. once the factory worker left the factory, they were disconnected from work and could not perform any further tasks,” he told HRD. “However, I think that it depends on how far you want to take the ‘right to disconnect’. For example, would taking telephone calls or reviewing training materials be included? Arguably, there is no reason to limit the right to answering emails and the like, thereby meaning that any right to disconnect could extend beyond those with a ‘digital connection’. The Victorian Police example is a good one in terms of a workforce that would not be considered as just having a digital connection to the workplace.”

How to best educate HR teams on sensible implementation of the disconnect rule

HRD started by asking Jhinku about what kinds of penalties could be imposed on employers who (inadvertently or otherwise) breached an employee’s ‘rights to disconnect’.

He considered that while there may be instances where there are business-critical reasons for HR or management to contact an employee, generally speaking, a blanket prohibition could be counterproductive. He thought that if penalties were to be imposed, these would most likely be in the form of monetary fines as part of a civil penalty regime.

Speaking to HRD about the importance of quickly educating HR management and executives about their potential liability and compliance requirements, Jhinku explained: “Depending on the extent of the right to disconnect and the potential liability imposed, this may present a significant business issue for organisations, and accordingly the leadership of those organisations will need to understand the implications of any changes, the likely impacts on the business, and how those impacts will be managed. Training will be an important aspect for all levels of management to ensure that obligations are complied with.”

Other compliance obligations which might prove challenging to HR managers and executives relate to employees who may be unwilling to ‘disconnect’. HRD asked Jhinku how would HR managers sensitively approach this so as to minimize employee burnout and he said that the answer won’t be a “one-size fits all approach”, adding: “There may be some technological solutions that can be implemented to manage risk, for example, access to emails may be restricted for certain levels of staff, so that they are not delivered between certain hours. However, in trying to find a solution, it may actually have unintended consequences, as some individuals may feel more ‘stressed’ if they don’t know what is waiting for them in the morning if, for example, they can’t check emails.”

Read more: Employees feel more stressed when forced to 'unplug' from work

Jhinku advises HR executives to be both flexible and responsive in their approach and target their policies to the specific needs of their organisation.

“Solutions will have to be bespoke to the organisation, and it will be important to consult with staff to develop an approach that works,” he added. “It will need to be re-visited regularly to make sure that it remains fit for purpose, and is responsive to identified issues as they arise. Workplaces where there is a high degree of electronic communication (emails and the like), along with occupations associated with long or unsociable hours. Parts of the finance and legal industry, along with emergency services, readily spring to mind as falling within those categories, but there will be many others.”

At the present time, the ‘right to disconnect’ has only been applied in Australian workplaces in limited instances, such as the Victorian Police example given above. Shivchand does not believe that there is a pressing need for this type of legislation to be introduced into Australian workplaces across the board, at the present time.

He also notes that there may be logical exceptions for the ‘right to disconnect’ where the legislation “excludes certain levels of management or categories of employees from the provisions” where employees or management whose salary is above a higher income threshold. Upper management earning above six figures, for example, or even business owners, may choose to exempt themselves or be exempted from any proposed legislation.

When HRD asked, Jhinku about whether the notion of ‘reasonableness’ could be applied to disconnect law, he thought that any proposed legislation would need to include some “carve-outs” which could either be on the basis of an exception to the applicable legislative provisions, for example, in the case of an emergency response, or reducing the span of hours that any right applied to or increasing the number of occasions that an employee could be contacted depending on their level of remuneration or seniority within an organisation.

At the end of the day, however, Jhinku wasn’t convinced that there was a need for disconnect laws in Australia at this time, cautioning that: “By its nature, legislation tends to be a blunt instrument and will not be able to consider the specific circumstances applicable to every possible scenario. For example, some roles require calls with international colleagues, meaning that working arrangements necessarily need to be altered. Organisations that engage with their staff about this issue will likely be able to develop bespoke solutions that work in their specific environment.

“Further, there may be some unintended consequences associated with broad-brushed legislative change. For example, if there are specific hours that employees cannot undertake work, then flexibilities that have otherwise been provided during work hours, such as to take time to attend a dentist appointment or to collect a family member from the airport, may be curtailed by employers because of the inability to recoup this time later. It would be a shame if legislation introduced with an intention to improve work/life balance actually had the opposite effect.”

He went on to say that he hadn’t seen a specific demand for this legislative reform. Instead, he argues that both employers and employees need to discuss and consider what is required in each workplace and what best suits their specific needs. “Organisations that want to be at the forefront of dealing with this issue will be engaging with their workforces around managing expectations, providing flexibility and how to implement an approach that works.”

In relation to how the right to disconnect might affect business continuity, Jhinku told HRD that this will “depend on the business. In some instances, for example during a serious WHS incident, it may require specific staff to be notified and to perform work on an urgent basis. I don’t think that prescriptive rules are the answer, as organisations will have to develop approaches that work for their specific situations.”

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