Last April we published an Insight article exploring the issue of after-hours ‘electronic intrusions’ from emails, messages, chat etc. and how they lead to stress amongst employees, with a suggestion that there should be a right to ‘turn off’. This concept has now been formalised within the ‘right-to-disconnect’ recommendation from the Federal Senate Education and Employment Legislation Committee, which was included in The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 and successfully passed through both houses of Parliament.
The amended Fair Work Act 2009 s.64A consists of two separate employee rights:
- 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.
and
- 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.
This means that workers are able to refuse to monitor, read or respond to contact from their employer outside of normal working hours as part of the new “right to disconnect” law, unless the refusal is unreasonable or they are required to be available outside work hours as part of their terms of employment.
This change helps workers protect their mental health and improve work-life balance.
The Parliamentary inquiries that underpinned this decision examined how the advancement of technology has led to “availability creep”, where employees feel they need to be available all the time to answer emails, calls or simply deal with their workload. The research within the Select Committee on Work and Care Interim Report indicated that this was exacerbated by working arrangements implemented during the COVID19 pandemic.
In short, the legislation means that:
- your boss can contact you out of hours, and you can’t get in trouble for not responding, but
- it doesn’t apply if your work conditions include that you’re expected to do overtime or be available outside usual hours.
QRMC is keen to emphasise the further point that, with psychosocial safety expectations being now legislated, it’s entirely appropriate for employers to be mindful of employee wellbeing when they are sending communications to workers, regardless of whether the ‘right to disconnect’ applies to the specific situation. Sending work communications within work hours is just good practice, given most people live on their phones these days and it’s reasonable to expect workers will see and experience a level of stress from work requests sent out of hours, even if they don’t have a legal obligation to respond to them. Bosses and supervisors would do well to use tools like email scheduling functionality, as well as good old-fashioned time management, to minimise unnecessary work communications outside of worker hours.
Laws of this nature have been implemented in, among other places, France and Italy, a positive labour reform ensuring the demands of work do not unreasonably encroach on the lifestyle or impact the welfare of employees.
Please contact QRMC for more information or assistance.
