ANDREW CARSWELL: Right to disconnect laws will stop benefiting workers when they realise it’s a two-way street

You won’t have to wait long for the cheers to turn into jeers.

It will be right at that moment when the work-allergic who are this week heralding the commencement of right to disconnect laws, suddenly realise this new world of work inflexibility after hours is a two-way street.

Before too long, we are likely to see that this new “right” that supposedly benefits employees, will actually have a set of consequences that aren’t that beneficial after all.

Because if an employee can now demand inflexibility after hours, as this new law decrees, shouldn’t it be natural and just for their employer to demand inflexibility during work hours?

This is the self-defeating upshot of the Albanese Government’s right to disconnect laws; new workplace rules that give employees the right to switch off from their workplace after hours and digitally divorce themselves from work emails and calls.

Since COVID toyed with our lives, workplaces have become bastions of flexibility, with 37 per cent of Australians still regularly working from home, while countless Australians work in environments that allow for personal interruptions.

Need to pick up your kids from school? Sure. Need to see a chiropractor during work hours? Go for it. Need to pop out and get some groceries for dinner? Absolutely.

This willingness from employers to show such flexibility is part of a growing compact of trust between themselves and workers, a maturation in employer and employee relations, based on an understanding that work-life balance is to be harnessed, and an acknowledgement that flexibility is a valuable lure for prospective employees.

With such flexibility comes a mutual recognition that work will sometimes elbow its way into home life outside of traditional hours. It is an unspoken understanding that there is give and take.

You are paid to get the job done. Not merely be at work for eight hours.

All of this flexibility between employers and employees will be at risk if workers decide to take a strict approach to after-hours contact.

These necessary personal appointments and tasks that sprinkle the daily calendar? Non-negotiable. Why should they be, if certain workers (and, no doubt, certain unions) start to decree that any contact after 5.01pm is now non-negotiable?

But it is not just flexibility at stake.

When the unemployment rate ticks up, as it will. When the economy edges towards a recession, as it may. Who do you think an employer would rather keep on their books if things got tight: a worker who is flexible, or someone who won’t even be contacted after 5pm? Who will purposefully ignore work emails, even in the event of a time-sensitive request?

What a way to advertise to your employer that you are probably not suited to a promotion; that you are probably not leadership material; that you probably don’t deserve a raise.

Self-defeating.

In defending these workplace changes, the Albanese Government makes a myriad of false claims in a desperate bid to burnish its credentials as not only helping workers but helping the economy.

The Government says these laws are progressive, when in fact they are a throwback to the bygone era when mobile phones and email did not exist; when we all punched our time cards into a physical machine. Mutual flexibility is progressive, not rigid rules around 9-5, as whined by Dolly Parton, you know, 44 years ago.

The Government says these laws boost productivity, with Prime Minister Anthony Albanese even suggesting that workers would be more productive if they only had to work eight hours and not a second more. He also suggested a three-piece feed from KFC was good healthy eating. Well, he may as well have done, while he was on a roll.

The Government says these laws will help families. It is the same Government that rightfully encourages greater female participation in the workforce, to help bridge the gender pay gap. You know what encourages more young mums into the workforce? Flexible working environments. The ability to work odd hours to balance family and career.

But perhaps even more laughable is the suggestion from the Government that these laws will clearly define work time and home time.

Like all things to do with workplace relations law, it’s not exactly that simple.

There are seven pages of the now 1500-page Fair Work Act that are dedicated to the right to disconnect. Of these seven pages, 1.5 of them spell out the actual right itself, whilst the other 5.5 explain how to handle “Disputes about the employee right to disconnect”.

Not sure whether something constitutes a “dispute” about the right? The answer can be found in sections 333N(1)(a)(i) and 333N(1)(a)(ii) of the Act, which helpfully explains that “This section applies if …

“the employer reasonably believes that the refusal is unreasonable”; or

“the employer has asserted that the refusal is unreasonable and the employee reasonably believes the refusal is not unreasonable.”

As clear as mud. In a beer bottle. In the Yarra River. In the middle of the night.

Andrew Carswell is a former Morrison government strategist.