Senate Committee recommends a "right to disconnect": what does it mean and what do employers need to prepare for?

Jennifer Wyborn, Kate James
22 Mar 2023
Time to read: 2.5 minutes

In the wake of recent litigation about reasonable work hours, the Senate Select Committee on Work and Care has released their final report, recommending that the Government introduce a new right for workers to disconnect.

It's 7pm on a Wednesday and everyone has headed home for the evening. Before you log off, you realise you need someone to double-check some stats in an email that's due today. Do you call someone? Maybe send an email asking a colleague to log on from home?

Reaching out to employees after hours has become increasingly easy to do, as technology allows us to take our work home with us. As more people opt for hybrid working models, the distinction between work and home life has become blurred.

However, contacting workers outside of hours can contribute to employees working unreasonable additional hours, increasing burn-out and giving rise to psychosocial hazards in the workplace.

Momentum is building to strike a new balance between work and home life

In the last month, two new cases have been launched in the Federal Court by employees arguing they were asked to work unreasonable hours. In late February, parliamentary staffer Sally Rugg launched a claim against the Commonwealth, arguing that she was dismissed as the Chief of Staff for Teal MP Dr Monique Ryan for refusing to work unreasonable, additional hours. Ms Rugg's evidence is that she was required to work 70-80 hours per week, well above the 38-hour work week legislated in the Fair Work Act.

The Financial Services Union has also commenced action in the Federal Court, on behalf of four NAB employees who say they were required to work between 10 to 16 hours a day. The Union has made public statements that the case is "just the start" for the industry, which has "an entrenched culture of forcing staff to work excessive, unreasonable and unsafe hours".

These proceedings will be important test cases, providing guidance on what are reasonable additional hours, above the normal 38-hour work week. To date, there have been few cases considering reasonable hours, especially in the context of professional services. Last year, the Federal Court held that it was unreasonable for a meat worker to work 50 hours a week, in circumstances where his shifts started at 2am in a cold room and required the worker to handle knives. However, the Court emphasised that unreasonable additional hours should be assessed on a case-by-case basis, with reference to the employee's circumstances.

While further guidance from the Federal Court is likely to be many months away, there is more immediate pressure building for the Government to legislate tighter regulations on contacting employees outside of work.

Senate Committee on Work and Care recommends legislating a right to disconnect

On 9 March 2023, the Senate Select Committee on Work and Care released its final report. The report made sweeping recommendations for a whole of government response to addressing Australia's work and care challenges.

A number of the recommendations address employees' work hours, including:

  • legislating a right for workers to disconnect outside of work hours;
  • mandating annual reporting to the Fair Work Commission on workplace rostering and flexible work practices;
  • requesting the Fair Work Commission review the 38-hour working week; and
  • trialling a four-day work week in diverse sectors and geographical locations.

If these changes are implemented, they are likely to lead to a significant re-think of the 38-work week and further reforms to protect employees' leisure time.

What would a right to disconnect look like?

Generally, a right to disconnect means that once an employee has gone home, or after a certain time in the day, they are not required to check their work phone or emails.

This concept has been gaining in popularity since it was legislated in France in 2017. French companies with more than 50 employees are required to negotiate with staff to define their rights to switch off outside of work hours. In 2018, a French company was fined 60,000 euro for failing to respect a regional director's right to disconnect.

Other European countries have introduced similar laws. For example, Germany has passed laws which prohibit employers from contacting employees while they are on leave.

What can employers do now?

The Government has a significant IR agenda in the coming year and support from the Greens will be crucial to getting the legislation through the Senate. With Greens Senator Barbara Pocock a leading proponent of the right to disconnect, the Government may be forced to legislate the right sooner rather than later.

With this in mind, it's important employers start to consider how they can prepare for any changes. This includes:

  • maintaining policies around use of work technology outside of hours;
  • monitoring employees' work activity outside of hours; and
  • maintaining up-to-date risk assessments on the psychosocial hazards of employees working long hours.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.