Lack of ‘right to disconnect’ continues to spell trouble for Aussie workplaces

A continued lack of concrete “right-to-disconnect” rules is putting Australian workplaces in dangerous territory, according to a law school lecturer.

Speaking on a recent episode of HR Leader's sister brand Lawyers Weekly's podcast, Dr Gabrielle Golding, senior lecturer at the Adelaide Law School, discussed the risks of limited right-to-disconnect laws in Australia and how workers could suffer as a result.

“I think, first and foremost, there is clear danger in breaching work, health and safety legislation. If you are putting employees in a position of overwork, and particularly in a situation where they are unable to manage the volume of that and how that’s occurring and when that stops and starts and the expectations around that, then the risk becomes ever greater,” Dr Golding said.

“If we don’t nip this in the bud as a cultural norm, if you like, that we as a working society respect the boundary between work and private time, then I think the problem is going to keep growing.

“If that’s the case, then generations to come are going to see this continue to exacerbate, and the problem is just going to perpetuate.”

Dr Golding acknowledged that certain employers have been proactive in the absence of legislative and regulatory changes related to the right to disconnect; however, she flagged that employees, too, are in a position to encourage further change.

“I think it’s going to really make the difference when individuals themselves recognise the importance and the need for this, not just from the legal risk perspective, but for their own wellbeing,” she said.

“In terms of some practical steps that people might take, [they might be] things like removing emails from your phone, making sure that you don’t open your laptop after a certain time in the evening, ensuring that maybe you have an out of office reply on that, perhaps mentions that you’re observing a right to disconnect, maybe encouraging your workplace to consider looking at drafting a right to disconnect policy. And the mere conversations alone, I think, are where the real difference can start to be made.”

Looking ahead, Dr Golding shared her advice for those looking to push further for the right to disconnect, be it internally in their workplaces or with the Federal Parliament.

“I love the idea of flexibility and being able to work wherever you want and whenever you want. But I think you’ve also got to balance that with the potential for legal risk. And if you’re coming at it from the employer’s perspective, there’s clear risk with respect to work, health and safety. There’s potentially great risk with respect to employees putting themselves in unsafe situations through overwork,” she explained.

“From the employees’ perspective, obviously, you’re really wanting to be doing the best for your own mental health, your own wellbeing. And I can see that whether it is through an act of Parliament, whether it is through change to an enterprise agreement, a modern award, a change to your employment contract, even the implementation of a workplace policy document or finally, if anyone out there is minded to take a case on this issue to court, to have a term implied by law into employment contracts, then there’s so many options out there.

“The mere fact that we are discussing all of them and that we’re alive to them now and the need for some kind of a cultural shift and change is only a good thing. And I think we find ourselves in a situation at this point in time, post-pandemic, where we can start to kind of chip away and to start to see some real difference, and it’s going to be for the better.

“I don’t think that this needs to be viewed as something to be frightened of or something that we might look at and see as a threat to availability. It’s rather, I guess, a thing that you can look at to create a clear divide between your work life and your private life. And I think that’s only healthy and normal.”

This article was originally featured in Lawyers Weekly.