Disconnected from reality
the broadness of the new right to disconnect law is likely to open the floodgates of applications to the fair work commission. By james mathias.
What does human trafficking, the importation of illicit drugs and sending an after-hours email to your employee have in common?
Answer: They are all a Commonwealth Offence carrying potential jail time.
The Albanese Government’s ‘Right to Disconnect’ law passed the Senate this week with its shambolic handling of the debate leading to an extreme Greens amendment being incorporated.
Having not been content with the $18,000 fine (60 penalty units) already contained within the legislation, the Greens slotted in amongst the more than 100 amendments an additional penalty of up to 12 months’ imprisonment for a boss who breaches Fair Work Commission orders not to contact their employees outside of work hours. Only with the support of Government votes in the Senate did this get passed.
There are already existing laws that provide protections to employees against working unreasonable hours, in fact existing workplace relations laws have Australia ranked the fourth best country in the world for ‘work life balance’ behind New Zealand, France and Spain. The latter is famous for the mid-afternoon Siesta which gives workers a break of around 3 hours to have lunch or go home to relax with their family.
The new provisions about the right to disconnect remain broad and give enormous flexibility to the Fair Work Commission to interpret their meaning. Interestingly, Labor has recently appointed 13 new commissioners all with union backgrounds.
As detailed in the legislation an employee may refuse to “monitor, read or respond to contact, or attempted contact, from an employer [or a related third party] outside of the employee’s working hours unless the refusal is unreasonable”.
According to the legislation, ‘unreasonable’ could mean the level of disruption caused to the employee, how the contact is made or even the caring responsibilities of that employee, which means it is reasonable to predict the broadness in the legislation will open the flood gates on top of the already 31,000 applications made to the Commission each year.
While the Government expects small businesses to be subject to these new laws - they don't apply the same principle themselves.
Freedom of Information documents show the Prime Minister's own office regularly contacting their department official at all hours, including emails after 10:30pm at night for somewhat trivial matters such as updating transcripts and even requesting talking points for a meeting with retired basketball player Shaquille O'Neal.
At a recent Senate committee hearing into the cost of living a Deputy Secretary of the Treasury confirmed ‘a lot of staff did work late’ over the two days post the Albanese Cabinet’s decision to change the stage three tax cuts..
This bill was summed up best by Michaelia Cash who said: “In a country with five time zones during the summer months and in a globally competitive economy, it’s not clear how this will help increase productivity in the workplace. This law just opens up another level of complexity for businesses at a time when they are doing it very tough.’’
These laws exist in other countries like France, Canada, Italy and Belgium with some interesting effects mainly on productivity. Canada introduced these laws in 2021 where at the time their workforce productivity levels were measured at 105.56. However two years later in July 2023 that had dropped to 99.47, the first time this measure had dropped below 100 since 2018.
A historic first case was brought to France’s Supreme Court in 2018 under their right to disconnect laws by an employee of the French wing of British pest control company Rentokil Initial. The employee who was dismissed in 2011 was claiming extra compensation for always being ‘on call’ during their employment period. Their number was listed as someone to call should problems arise with customers and subordinates, resulting in them having their phone on permanently.
The court found that being required to have the phone on permanently amounted to being on call all of the time and that compensation for this time should be paid. The company was ordered to pay the employee €60,000 ($99,536 AUD).
If Australian courts were to take a similar view this could open up the floodgates to litigation against Australian companies.
How these laws will end up impacting Australian businesses and the economy is anyone’s guess. Although one thing is obvious: that there will surely be an increase to the already impressive 31,000 applications lodged with the Fair Work Commission every year. And it leaves the unions with yet another new law passed by the Albanese Government to attack employers.