The right to disconnect: Corporate policy or a matter for Parliament?

Since a bill proposing a legal right to disconnect was introduced to the Federal Parliament in March this year, experts have been divided over its appropriateness. What does the debate consist of, and who is saying what?

New research from the Australian Human Resources Institute (AHRI) suggests that appetites for a formal right to disconnect from work-related communications outside of work hours are strong, both among human resources professionals and senior decision-makers.

Sixty-four per cent of employers believe that a law or policy giving employees the right to disconnect would have a positive impact on the ability of employees to work flexibly.

Should the appetite for a formal right to disconnect become realised, the question is whether it is a matter for Parliament or corporate policy. Let’s consider the recent findings before breaking down the right-to-disconnect debate.

Employer appetites

As mentioned, a majority of employers believe that a formal right to disconnect from work-related communications outside of working hours would help work become more flexible. A stauncher cohort of 45 per cent of employers believe not only that such a right would be beneficial but also that it is necessary in their organisations.

This opinion is strongest in manufacturing and production firms, at 58 per cent of employers, while only 20 per cent of employers in the public sector think so.

The calls for a right to disconnect tend to point to issues of employee burnout and stress caused by round-the-clock work duties and an erosion of work/life balance. As noted in a UNSW Law Journal article: “The expectation to stay connected out-of-hours is making employees miserable, leading to burnout, poor performance, and high turnover.” The expectation, the article said, is a “universal problem”.

The problem may also be a growing one as the line between home and work life is increasingly obscured. As noted by UNSW, there is a “darker side” to flexible work, which often means that employees, when working remotely, are never afforded the finality of an in-office working day.

“Despite its apparent benefits, working flexibly has been shown to contribute to long work hours, seeping into employee private time, otherwise dedicated to leisure, rest, and family. The fallout can be disrupted sleep, overwhelming stress, burnout, challenging relationships, and distracted carers,” it said.

Flexible working, for all its benefits, can often mean that employees are expected to be “always on”, strengthening the case for a right to disconnect.

For many employers, such a policy is already a reality. According to AHRI, 41 per cent of Australian employers have a formal disconnect policy (or equivalent) already in place. That said, there is considerable diversity when it comes to the actual protections afforded under such policies.

For instance, while 68 per cent of policies apply equally to all employees, some 25 per cent exempt senior management and managers from the right.

A right at law or corporate policy?

For all the promise of a right to disconnect, many commentators and experts have pointed out it could fail to properly serve the interests of businesses and employees. Specifically, many say that a one-size-fits-all approach, such as that implied by a blanket workplace law, would have adverse effects in organisations and industries where such a policy is simply infeasible.

Though the debate has been ongoing since 2017, when the French government rolled out its own version of a right-to-work policy, the conversation has grown in urgency since, in March, a federal workplace bill proposing such a policy was introduced to Parliament.

Broadly, if passed, the bill would prevent employers from contacting employees or requiring employees to monitor work communications outside of work hours except in the case of an emergency, for welfare reasons or when the employee is receiving an “availability allowance”.

As noted by Lander & Rogers partner Sally Moten: “It’s much better off to be left to the employer and the employee to negotiate in a way that suits their work and their workforce.”

“No job is the same,” she added, “and if you think of people that are on call, [like] a medical professional – they have to be on and get called back if there’s a medical emergency after surgery, for example.”

Others suggest that international examples ought to be raising eyebrows when it comes to blanket laws, while others still say that such a law could hamper employee flexibility as responsibilities would once again fall strictly within the traditional in-office working day.

Conceivably, said Jessica Tinsley, director of workplace relations at the Australian Chamber of Commerce and Industry, this could have an adverse impact on the competitiveness of Australian businesses.

“If businesses are forced to operate inside the traditional working day, they will not be able to effectively provide competitive services in the international marketplace,” Ms Tinsley said.

Though it is questionable whether legislators will introduce a disconnect policy any time soon, it could pay to be prepared for such an eventuality. To that end, Clayton Utz recommends business leaders should be doing the following:

• Maintaining policies around the use of work technology outside of hours.
• Monitoring employees’ work activity outside of hours.
• Maintaining up-to-date risk assessments on the psychosocial hazards of employees working long hours.