Employment lawyers provide insights, tips for HR on how to be proactive
There have been growing calls for Australia to introduce a ‘right to disconnect’ law.
In March 2023, the Fair Work Amendment (Right to Disconnect) Bill 2023 was introduced to Parliament, which “prohibits an employer contacting an employee outside of their working hours, unless there's a genuine urgency for it,” Melinda Bell, partner at Norton Rose Fullbright Australia, told HRD Australia.
The legislation would also mean that employees aren’t required to read or respond to work communications like emails outside of work hours.
More recently, minister for employment and work relations, Tony Burke, shared his support for the proposed legislation.
During an episode of ABC’s Q + A, Burke said, “It's something where we haven't made a final decision…[but] I am really attracted to the idea.”
But what would such legislation look like in Australia?
The ‘right to disconnect’ bill
Bell explained that Australia’s proposed plan to introduce ‘right to disconnect’ laws stems from similar concepts in European countries. For example, France introduced the right to disconnect from technology after work hours legislation in 2017.
“There's been a right under French law for businesses of a certain size, I think it's 50 or more employees, to disconnect,” she said. “And it's a right not to be required to check…their work phone or emails. There’s been fines under that legislation as well. And other European countries have done similar things.
“I don't know whether that would necessarily manifest itself in the same way here, in terms of a right to disconnect. It's more of a right not to be contacted.”
In Australia, the Victoria Police Force has a right to disconnect in place for their officers as part of their Enterprise Bargaining Agreement from 2021.
“They, as I understand it, get an allowance every hour they're off duty but can be contactable,” Bell said.
Health and safety and disconnecting from work
One area where the right to disconnect could be further championed in Australia is from the perspective of health and safety.
“I think that that's going to be the real place where we see real action probably by regulators in that sense, from that health and wellbeing point of view,” Bell said.
From a health and safety law perspective, it’s not really being called a right to disconnect, said Nicki Milionis, also a partner at Norton Rose Fullbright, who specialises in workplace health and safety law.
“What we've been calling it is management of risks of psychosocial health,” she said. “And one of those hazards might actually be high job demand. It's a hazard which might manifest as people feeling the inability to manage their work within a particular set period of time and may feel the need to be responsive outside of normal hours or for longer hours.”
While Australia already has regulations in place to manage risks to psychosocial health, she said the proposed right to disconnect laws could potentially provide some clarity for employers in terms of worker safety.
“What's really interesting is that there's possibly a tension between the increasing availability and desire for flexibility that many of us have – where we work and when we work – versus a benefit in having a right to disconnect for our psychological health,” Milionis said. “And managing that tension is potentially something that every employer is going have to turn their mind to in a way that maybe they haven't since certainly not pre-pandemic.”
How HR can prepare for right to disconnect legislation
If the proposed legislation comes to pass, it would mean employers would have to pay closer attention to the hours worked and the pay entitlements of employees.
“That obviously comes down to things like paying people for the hours they're working and tracking those hours of work and implementing appropriate overtime policies or time in lieu policies,” Bell said. “Which, if an employee is working outside of their ordinary working hours, they're being renumerated for it. And there's processes and systems to check the people are being renumerated and rewarded for their efforts appropriately.”
In the meantime, Bell suggests employers engage with workers to understand their workloads from a management point of view.
“Ensure your managers are equipped to be managing the workloads of their team and they've got the tools and equipment that they need to help manage their team,” she said.
Managers should also be equipped to have conversations with employees who may be experiencing a higher workload, Bell said, and help recalibrate the person's priorities or assist them in rebalancing or redistributing work.
Another idea is to develop a respectful workplace culture where people feel confident and comfortable to speak up, she said.
“If they are struggling and they're feeling like they've not got the opportunity to have the level of recuperation that they need between shifts or the expectations are too much, there is somewhere where they can go and a culture is fostered where those issues can get escalated,” Bell said. “Whether that's to HR or a wellbeing contact if it's not to the direct manager themselves.”
Bell also suggested that employers look for the “hotspots” – potential issues that can identify problematic workplace behaviour.
“Are there groups that just haven't had any annual leave for a very long time, where there's no utilisation of leave?” she said. “That might be a sign that they're working excessively and there doesn't feel like there's an ability to take annual leave, for example, and it might lead to burnout. Or there's conversely high levels of personal leave – what could that be indicative of? Is that disproportionate to the rest of the organisation? Could it be the fact that people are burning out a bit or they are not coming to work because they can't cope with the workload? So looking for those signs as well which might indicate an underlying issue.”
And finally, it’s about ensuring employers have clear policies and directions around their work requirements “so if something like the right to disconnect was to come in, that it's not a shock; that managers in particular are aware of what's expected of employees,” Bell said.