Right to Disconnect Backgrounder

Prepared By Sue Ellson for Channel 7 News Australia, Newstalk ZB New Zealand and RNZ National Radio New Zealand

Here in Australia, we operate under legislation called the Fair Work Act 2009 and a bill has been summited to the Australian Government’s House of Representatives (by Adam Bandt MP , the Federal Member of Parliament for Melbourne and the Leader of the Australian Greens party) and the Senate (by Barbara Pocock AM) to lodge a Right to Disconnect Bill (Amendment) in March this year.

This has come about as a result of the Work and Care Enquiry https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Work_and_Care/workandcare and reforms recommended in that including the Right to Disconnect.

The ultimate goal is to include it in a range of Industrial Relations Reforms that will hopefully be passed by the end of this year.

The Right to Disconnect amendments include:

(1) An employer must not contact an employee outside of the employee’s hours of work (including during periods of leave), unless:

(a) the reason for the contact is an emergency or a genuine welfare matter; or
(b) the employee is in receipt of an availability allowance for the period during which the contact is made.

(2) An employee is not required to monitor, read or respond to emails, telephone calls or any other kind of communication from an employer outside of the employee’s hours of work (including during periods of leave) unless the employee is in receipt of an availability allowance for the period during which the communication is made.

(3) In this section:
availability allowance, for a period, means an allowance for being rostered, or otherwise directed by an employer, to remain available to perform work during the period.

https://www.legislation.gov.au/Details/C2023B00033/Html/

International information

“Under the international regime, “Right to Disconnect” is a derivation of Article 24 of the Universal Declaration of Human Rights (UDHR) which states the following: “Everyone has the right to rest and leisure including the right for the rational limitation of working day and periodic holidays with pay”. It can also be seen as an evolution of the biblical concept of “Sabbath” which says that the seventh day of the week should be observed as a day of rest, drawing a boundary between time to work and rest.

The right to disconnect is present in certain European countries such as France, Spain, Scotland, Italy, Belgium, Slovakia and Germany. In Germany, the “Right to Disconnect” is not governed by some specific legislation but instead is a modality adopted by a large number of German multinationals. The Philippines also became the first Asian country to recognize the “Right to Disconnect” and include it in its labour regime. Shortly, various countries adopted similar legislations and started to enact the right to disconnect legislation.”

https://cll.nliu.ac.in/1669-2/ (really great piece)

How will this work for business?

Obviously, if there is legislation, it is up to business to make sure that it makes provision for employees to disconnect or be paid an additional availability allowance.

How I see it working on a practical level:

negotiations during the job offer and included on work contracts
updating the onboarding process to discuss availability requirements
additional compliance measures to make sure that it happens (to be monitored by human resources and yes, more compliance!)
possibly more work mobile phones, tablets and laptops so that these can be ‘passed on to someone else’ when the person is unavailable
greater recognition, enforced by legislation, that we need to separate work from our personal lives

Could this work in New Zealand?

I imagine the concept could work in any country that cares about the wellbeing of its citizens.

US Author of ‘Rest is Resistance’ Tricia Hersey set up the Nap Ministry in 2016 to help people learn how to rest in the hustle and grind culture of capitalism where we live and we are expected to always be ‘on’ and ‘doing’ things instead of just divinely being.

She mentioned on Radio National in Australia today that during COVID, many people got the first ‘rest’ they had had in many years and it was difficult for people to slow down and they realised they didn’t know HOW to rest. https://www.abc.net.au/listen/programs/lifematters/life-matters/102683636

Interestingly we are now seeing so many more mental health and burnout issues affecting employees. Worker’s compensation differs between males and females with the largest difference by gender was Mental stress, which accounted for 6% of claims by males but 13% of claims by females. https://www.safeworkaustralia.gov.au/sites/default/files/2022-12/australian_workers_compensation_statistics_2020-21.pdf p19

This ties in with the ‘second shift’ of females who do the majority of work in the domestic environment. On average, females spent 4 hours and 31 minutes a day doing unpaid work activities. Males spent over an hour less on these activities, averaging 3 hours and 12 minutes a day. Less than half of males (42 per cent) spent time on housework, compared to 70 per cent of females. https://www.abs.gov.au/media-centre/media-releases/females-do-more-unpaid-work-males-do-more-paid-work

As you can imagine, fitting this in around a full time role is difficult.

Where could there be issues?

Ideally, the right to disconnect rules and protocols should be negotiated at the level of each person and take into account how it could be ‘reasonable’ for both parties. If someone chooses to work from home between 6am and 2pm, do they need to be available between 9am and 5pm if a message comes through?

If they take out an hour in the morning to attend to personal matters, do they then owe the employer an hour later? Will this mean that work and personal activities will become more distinct so that employees do not take care of personal matters during work time? Monitoring could be an issue, but the principal is still sound.

Some work, despite the ability to disconnect doesn’t normally mean that you do. People in the medical or teaching professions, or looking after the needs of clients may not be able to turn off at a set time and may find themselves taking notes or ruminating over a work issue outside of hours. Some bosses may only be able to respond later in the day. Self employed people here in Australia cannot get workers compensation and have to secure their own insurance but at the same time, do they ‘ever’ really turn off from work?

Anxiety disorders are also increasing, for various reasons, and the ability to relax, unwind, eat healthily and exercise can all be reduced if people believe they are ‘always at work’ or need to wrap things up every day before resting and then running out of time to do so.

What could the benefits be?

Starting conversations, raising awareness, setting up better systems to manage workflows, understanding that people are not always available could empower people to make other alternatives available rather than always relying on individuals. It may foster new AI developments that ‘force’ time out periods and auto responses during non-availability times. It may also reduce the substantial premium paid to executives who are expected to be ‘always available’ as part of their remuneration and an unintended consequence is that the pay premium could swing in favour of the majority rather than the minority.

According to this article – the Greens are pushing for an amendment to the Fair Work Act called the ‘Right to Disconnect’ – which means employees will have the right to ignore emails, calls or texts they receive after work hours.
https://7news.com.au/news/greens-push-for-aussies-to-be-allowed-to-ignore-work-calls-and-emails-after-hours-c-10093081

The topic came up on ABC’s Q&A last night after Tony Burke, the Minister for Employment and Workplace Relations, said he was ‘attracted to the idea’ of bosses being barred from contacting employees after work hours

What are your thoughts on this? Do you agree or disagree?

As a general principle, it sounds ‘fair enough’ to give people the right to disconnect especially when many employees feel as if they are ‘always on’ or close to burnout. The fact that various trends have started on TikTok like ‘quiet quitting’ or ‘bare minimum Mondays’ or ‘act your wage’ demonstrates that employees are looking for a way to keep the employee/employer relationship on a fair trade of time, money and availability.

However, a lot has changed over the last 10 years. How often do employees check their social media, attend to personal matters or take time to respond to private messages or calls on employers’ time? Working from home allowed many people to multi-task, although the statistics show that on average, people working from home tend to work more hours than they do if they were at work. https://www.pc.gov.au/research/completed/working-from-home/working-from-home.pdf Work from home has blurred some lines and if one worker wants to start at 6am to juggle their personal commitments, does that mean an employer can or cannot contact them at that time?

The other factor is the bring your own device BYOD to work trend. If you are using your personal phone for your work and personal life, it is hard to avoid seeing work matters after hours, particularly if you are doing business with international clients or customers who may be corresponding overnight. Some people may prefer to do a messages and notifications clearance at home before starting for the day and whilst this may suit them and their work style, it doesn’t necessarily mean that they are available at that time.

So ultimately, in an ideal world, this would be another work condition that is part of the employment arrangement. Sadly, many employers could assume that a person is meant to be available whenever they want, but if it is part of legislation, it will make sure that employers do comply with a reasonable trade of time, money and availability. Just because a message only took two minutes to respond to doesn’t mean that it is ‘okay’ to expect this level of availability. Answering the message (phone, text, email, chat) still interrupts their personal time and thoughts.

If the legislation gets passed, how will this change the way employees / bosses work in Australia?

It will increase compliance, which many HR professionals are already finding difficult. It may encourage a higher usage of work-provided devices (and expense) so that these can be separate from employees’ personal devices (phones, tablets, laptops).

It could ensure that an ‘availability’ allowance is included in offers for work, but it may also request a reciprocal right on personal activity at work.

If an availability allowance or provision is made, it may be even more difficult for some people to switch off from work and it doesn’t necessarily include training on how to manage one’s work of personal life.

Traditionally, top CEO’s are expected to be available at any time of the day or night. This may mean that a deputy could be rostered to ensure that disconnect time is available.

Ironically, for people in their own business, there is no such option. 97.5% of businesses in Australia are small businesses and 1.5 million do not have any employees, so this legislation may increase the conversation but it may not help everyone disconnect https://www.money.com.au/research/australian-business-statistics

It may mean that out-of-office messages are updated more frequently to indicate when the person can realistically respond or advise who to contact if it is an emergency. I imagine ‘read receipt’ requests could also increase as well as chat services which show when a person has seen the message. So many of us have automatically tried to ‘clear the decks’ on all our ‘channels’ before the end of the day and this precedent may be hard to overcome for both the employee and the employer.

Do you think there are any exceptions for bosses to contact employees? If so, what are they?

In the onboarding process when you first start work, ideally there would be a conversation around when you could be contacted after hours. For example, a communications and public relations person may need to be on standby if a crisis occurs and the media are contacting the organisation looking for a statement but if this is rare, you would not expect an additional availability allowance.

Some managers can micro manage people or in a quiet moment in the evening, feel compelled to answer a backlog of messages and expect an immediate response and this could be considered unreasonable. So hopefully, it would reduce unrealistic expectations.

Overall, it is going to depend on the nature of the business operations and there needs to be an agreement between both parties that is fair and reasonable on both sides. There would also need to be some sort of independent moderation process if it became untenable – which respected the rights of the employer and the employee.

Likewise, if an employee needs a certain number of hours distraction free (for example, they are unwell and resting), then this needs to be achievable, particularly in larger organisations.

This may also open up a conversation about short split shifts and their effect on employees. Having a four hour shift and then another four hour shift within three hours doesn’t necessarily give people enough time to disconnect or manage the rest of their life – essentially, they are ‘working’ for 11 hours (example – airline workers).

There are several similar points in this article written by lawyers (of which I am NOT one!) https://www.holdingredlich.com/leave-a-message-at-the-tone-employee-s-right-to-disconnect

Please note that my comments are for general information and do not constitute professional advice for an employer’s or employee’s personal situation. Photo is of sky sign writer over the Geelong Victoria Waterfront on 27 June 2019.

Information quoted in the following interviews…

25 August 2023
Right to Disconnect on Radio New Zealand
The Panel with Wallace Chapman, Sally Wenley, Andie McCombs and Sue Ellson
https://sueellson.com/blog/right-to-disconnect-on-rnz-radio-new-zealand

25 August 2023
LinkedIn News Australia Right to Disconnect Share
https://www.linkedin.com/posts/linkedin-news-australia_bombshell-new-rule-could-impact-every-employee-activity-7100663635189846016-HkMw
Selected by Capucine Yeomans Senior Managing Editor at LinkedIn News

23 August 2023
Right to Disconnect on Newstalk ZB Radio New Zealand
https://sueellson.com/blog/right-to-disconnect-on-newstalk-zb-radio-new-zealand
Heather du Plessis-Allan interviewed Sue Ellson

22 August 2023
Ban on Australian bosses contacting workers out of hours: Careers expert Sue Ellson predicts pay impact over bombshell proposal
https://7news.com.au/lifestyle/ban-on-australian-bosses-contacting-workers-out-of-hours-careers-expert-sue-ellson-predicts-pay-impact-over-bombshell-proposal–c-11664791
Cindy Tran quoted Sue Ellson