The story so far: Following the lead of European countries, Australia this month enacted the ‘right to disconnect’ to protect its workforce from being penalised or punished for ignoring official communication in the form of calls, messages or emails outside of regular working hours. Under the new law, a company could face consequences if it penalises an employee for not responding to work-related communication outside of work hours. The regulation, introduced as an amendment to a broader parliamentary Bill focusing on workplace relations, work health, safety, compensation and rehabilitation, seeks to address the ‘always-on’ workplace culture.
Approved by the Australian Parliament on February 12, the law has brought some cheer to the working population, with workers’ unions welcoming the change as “a step in the right direction.” However, the looming threat of criminal penalties on employers for breaching the rule has sparked debate, with some politicians and business leaders criticising it as a “rushed and flawed” legislation.
What is the right to disconnect and why is there an increasing demand for it?
The last decade saw rapid advancements in digital tools and technologies, making communication possible anytime and anywhere. This opened up endless possibilities for telework and remote work, forever changing the dynamics of the traditional physical workplace. It led to greater flexibility and autonomy for workers by eliminating the need for travel, but also presented new challenges, with people struggling to maintain the boundaries between their personal and professional lives.
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The COVID-19 pandemic and the shift to ‘work from home’ further blurred the boundaries as people found it difficult to switch off from work. Complaints emerged about “availability creep,” an urban trend defined as the pressure felt by employees to be constantly available to perform their work duties.
Workers’ unions have long advocated for the ‘right to disconnect,’ with similar laws already in place in European countries like France. Italy, Belgium, Spain, Ireland and Portugal followed suit as the issue gained prominence during the pandemic and people demanded legislative protection to switch off from work without fear of penalty. In December 2020, the European Parliament’s Committee on Employment passed a non-binding resolution calling on the European Commission to enact into law a “right to disconnect” from work while at home.
Amidst concerns about the impact of an ‘always-on’ culture on productivity and mental health, a push for a right to disconnect gained momentum in Australia against the backdrop of the pandemic, as workers sought to leverage a tight labour market to improve work-life balance.
In 2021, Victoria Police officers won the right, followed by similar agreements in the country’s banking sector. However, the problem remained largely unaddressed at the federal and State levels. A 2023 study by The Australia Institute found that Australian employers “stole more than 280 hours” from their employees each year, which equates to around A$92 billion ($60.13 billion) in unpaid wages. A previous study by the Centre for Future Work stated that 71% of those surveyed often worked outside their work hours.
In March 2023, a Senate Select Committee, instituted to assess how work and care responsibilities impacted the well-being of caregivers and those they care for, highlighted the phenomena of “availability creep” and recommended that the governmentintroduce a right to disconnect for workers. Other key suggestions included an increase in penalties for employers who commit wage theft through unpaid additional hours of work, and considering “changes to the law that make these cases subject to criminal charges.”
“It is time for a new social contract, fit for the 21st century workforce, that does not put the burden on workers juggling care responsibilities around their jobs,” said Australian Greens Senator Barbara Pocock, the chair of the panel, when she released the report. Subsequently, Ms. Pocock’s colleague Adam Bandt introduced the Fair Work Amendment (Right to Disconnect) Bill 2023 in the House of Representatives on March 20, 2023.
The proposed legislation sought to amend the Fair Work Act, 2009 to prevent employers from contacting employees outside of work hours. “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 receives an availability allowance for the period during which the communication is made,” the text of the Bill read.
While introducing the Bill, the left-wing MP said, “Our workplace laws were not drafted at a time when everyone had a smartphone in their pocket and was only a phone call, text message or email away from their work. They were drafted at a time before the pandemic when working via technology became the norm for many people and much more normal for everyone else. This bill will give people the right to log off when they clock off and to say, unless you’re getting paid for it, your time is your own, and your employer does not have the right to contact you by text, email or phone when you’re enjoying your leisure.”
The draft was later included as an amendment in the government-driven Fair Work Legislation Amendment (Closing Loopholes) Act 2023, which also proposed reforms in the Fair Work Act, Australia’s central workplace legislation.
How does the law safeguard the workforce?
An employee can refuse to read or respond to attempted contact from their employer (or any third party related to work) outside the regular working hours unless the “refusal is unreasonable.”
“An employee’s refusal to monitor, read or respond to contact, or attempted contact, from their employer, or a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory,” the law adds. The law applies to all workers covered by an enterprise agreement which includes the ‘right to disconnect’ term.
The Bill outlines several factors to be considered while determining the reasonableness of a refusal of work-related contact. These include the reason and method of contact, the level of disruption caused, the extent of overtime compensation, the nature of a person’s role and level of responsibility, and their circumstances.
In the event of a dispute, a worker can escalate the matter to the Fair Work Commission (FWC) if workplace-level discussions fail to resolve the issue. The Commission has the authority to issue an order to stop an employee from refusing contact or to stop an employer from taking action.
What explains the backlash against the new law?
Australian labour unions have welcomed the new regulation as a positive step. However, the Albanese-led government has faced a backlash from business groups who are worried about productivity and potential criminal penalties. Violations of the law could result in employers being fined up to A$18,000. Australian news outlets have reported that the Albanese-led government has said it will “fix up” the new legislation.
Prime Minister Anthony Albanese told the Australian Broadcasting Corporation (ABC) on February 9, “It [the right to disconnect] won’t mean anything, it’ll just mean we fix it up through separate legislation because this legislation isn’t due to take effect for many months..” The channel claimed that the government had tried to scrap the criminal penalties provision but the coalition did not support it. Minister Bill Shorten told ABC that he had “no doubt” the government would look to make changes to the legislation before it is made into law in six months.
The Business Council of Australia (BCA) earlier released a statement criticising the “last-minute addition” as “disappointing and anti-business.”
“The approach taken by the Government is very broad and risks capturing many gig workers, making them employee-like and applying unclear standards that we fear will add unnecessary cost to consumers for the services they enjoy every day,” BCA Chief Executive Bran Black said.
The Australian Chamber of Commerce and Industry also opposed the law, calling it “botched” and raising concerns about the provision of criminal sanctions against employers.
Does India have plans for a similar law?
While the EU nations have been at the forefront of introducing laws that protect the ‘right to disconnect’ of workers, Nationalist Congress Party (NCP) leader Supriya Sule has proposed a similar law multiple times.
The Baramati MP first introduced a Private Member’s Bill to this effect in the Lok Sabha in 2018 and has been since lobbying for workers’ rights. The draft highlighted the need to respect the personal life of the employees by recognising their right to disconnect and not respond to their employer’s calls and e-mails, during out-of-work hours. “The Bill seeks to recognise the right to disconnect as a way to reduce stress and ease tension between an employee’s personal and professional life,” it stated.
The proposed regulation sought that the government set up digital detox centres and provide digital detox counselling services to citizens for the personal use of digital and communication tools. The Bill, however, lapsed with the end of the tenure of the House. Ms. Sule returned with the Bill in 2022, but it didn’t move ahead.
The manifesto of the NCP-Congress during the 2019 Maharashtra Assembly elections included a promise to implement the right to disconnect as well as a five-day workweek. However, the rule was not implemented before Uddhav Thackeray’s resignation in 2022, which marked the end of the Maha Vikas Aghadi (MVA) government’s two-year-long tenure in partnership with Congress and NCP.
- The ‘right to disconnect’ protects the workforce from being penalised for ignoring official communication outside of regular working hours
- The company could face consequences if it penalises an employee for not responding to work-related communication outside of work hours
- In India, Nationalist Congress Party (NCP) leader Supriya Sule has proposed a similar law multiple times
