Right to disconnect laws are ‘clear as mud’ and detached from reality, argue business groups

New right to disconnect laws risk pitting bosses and workers against one another, experts warn, in a belligerent battle to work to inflexible workplace standards.

As the new laws swung into effect on Monday, companies were hit with chaos and confusion, with the Government maintaining the right to disconnect would lead to workplace discussions about appropriate hours and means of contact.

But industry groups and employment experts warned the laws flouted common sense, and with concerns over lack of detail over what is considered both reasonable and unreasonable for out-of-work calls and emails.

Western Australia’s time difference — including a three-hour gap with Sydney and Melbourne in summer — sparked persistent concerns over effectively shorter business days for companies with multiple offices across the country.

Most Australian companies contacted by The Nightly, including big banks and miners, refused to comment on advice provided to staff about the laws, amid the serious confusion.

The agency responsible for resolving disputes — the Fair Work Commission — was yet to provide official guidelines to companies for the operations of the laws, including resolving internal disputes, despite being required to do so.

In a statement on Monday, Fair Work Ombudsman Anna Booth said a refusal to respond would be based on the circumstances, including, the reason for the contact and the nature of the employee’s role and level of responsibility.

Also to be considered by the Commission would be the employee’s personal circumstances, how the contact is made and how disruptive it is to the employee; and any relevant extra pay or compensation they receive for working additional hours or remaining available to work out of hours.

“We encourage workplace participants to educate themselves on the right to disconnect and take a commonsense approach to applying it within their workplace,” Ms Booth said.

“It will be ideal if employers consult with employees and their unions on the policies that apply in the workplace.

“Like most employment matters, any dispute should first be discussed and sought to be resolved at the workplace level.

“If that resolution does not occur, the Fair Work Commission can deal with disputes regarding the right to disconnect.”

Added to a wave of industrial relations reforms in February, the new right to disconnect was proposed by the Greens, and agreed to by the Albanese Labor Government.

Among the concerns raised included the risk of employers enforcing stricter workplace time rules for employees who refuse after hours contact, including workers taking time out of their day to complete personal tasks, such as paying bills, or using social media.

Australian Institute of Management WA chief executive Gary Martin said the laws would reduce flexibility.

“The workplace is based on give and take,” Professor Martin said.

“If on the one hand, employers can’t contact employees outside of hours, then they’re going to say, well, make sure that the time that you spend in work is actually on work.

“It compromises the flexibility cherished by many workers and organisations, because it disrupts the balance between the two.”

Minerals Council boss Tania Constable described the new laws as “clear as mud”, citing a clause in the Act which had confusing wording around disputes.

“There is a dispute between an employer and an employee because the employee has refused to monitor, read or respond to contact or attempted contact and 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,” the Act reads.

“This is a bad piece of legislation that was never part of the government’s mandate. It was a thought bubble put forward by the greens in terms of amendments, and unfortunately, we have seen it passed without great scrutiny or analysis, and we think it disproportionately affects the West.”

Ms Constable said the laws had replaced a “common sense” approach to flexible working arrangements.

“What should be applied in terms of a right to disconnect is for an employer and employee to go back to a common sense approach that you only speak to people outside of hours if there is a need to do so and when you’re dealing with the west and the east and you’ve got a time difference of three hours, sometimes you’re going to need to do that,” she said.

“You’ve got to be able to get in contact with people, because you need to be able to keep the mining industry going. You need to be able to get access to equipment, get access to products, get access to maintenance services.

“Those things are part of a supply chain and they involve the west and the east coast of Australia.”

Australian Chamber of Commerce and Industry chief executive Andrew McKellar said the main problem for businesses was the huge lack of certainty around what was allowed or not under the changes.

He anticipated there would be test cases emerging down the track but until the Fair Work Commission defined the limits in a judgment, it was up in the air.

“I’d say this is a solution looking for a problem,” he said.

“Our concern is, what we’ll see is in a number of cases, this will be used when the employment relationship is broken down. It’ll be another reason why there are claims or why there’s litigation.”

Prime Minister Anthony Albanese brushed off the criticism, arguing that the “commonsense” changes would create more productive workplaces.

“It’ll boost productivity,” he told ABC Sydney. “Because when people are actually loyal to their employer and focused on what they should be doing, and not being distracted 24 hours a day but focused on eight hours a day … you’ll get a more productive workforce.

It isn’t going to spark a conversation. It’s actually wrapping employers up in additional red tape and making some jobs completely unworkable.

“The idea that you should be on call at 10 o’clock at night if you work a nine-to-five job isn’t reasonable and that will lead to better relations in the workplace.”

The new laws come into effect on Monday for businesses with more than 15 employees, along with changes to the rights of casuals and gig workers.

Small businesses have another year until their employees legally have the right to disconnect.

Shadow finance minister Jane Hume reiterated the Opposition’s commitment to look at rolling back the industrial relations changes if it wins government.

She dismissed Workplace Relations Minister Murray Watt’s claim that all the right to disconnect would do was start a conversation between employers and staff.

“It isn’t going to spark a conversation. It’s actually wrapping employers up in additional red tape and making some jobs completely unworkable,” she said.

“Without flexible industrial relations laws, we are simply putting a handbrake on productivity, which is the only driver of economic growth and the only way we can have wage rises that aren’t inflationary.”

Senator Watt visited a Catholic high school in Canberra which already offered its staff a right to not respond to late-night emails or messages from parents and students, even before the new laws started.

“I’ve seen a lot of scare campaigning already from some of the employer groups and Coalition figures who are saying that this will be the end of the world, it’s too complex, it doesn’t recognise the benefits of technology,” he said.

“The world has gone on and actually workplaces that are adopting these types of practices are reaping the benefits in happier employees.”