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Lessons for Australia in implementing ‘right to disconnect’ laws
One silk discusses how countries around the world have implemented the right to disconnect legislation and shared headline lessons for Australia.
Jess Feyder
Recently on The Lawyers Weekly Show, host Jerome Doraisamy spoke with Sydney-based barrister Ian Neil SC about the key leanings taken from other countries’ implementation of right to disconnect legislation.
Last week, Lawyers Weekly spoke with managers at several legal recruitment firms, who discussed that the pressure lawyers are feeling to work outside of defined hours is increasing.
This increase is in part attributed to the uptake of remote and flexible working arrangements and the increased communications technologies, meaning that lawyers are more reachable on their devices than ever.
Some law firm partners, however, have argued that implementing right to disconnect laws in Australian workplaces, including legal ones, could lead to “significant unintended and problematic consequences”.
Mr Neil delved into the history and implementation of the right to disconnect laws across the globe.
“Laws pertaining to the right to disconnect go right back to 2001,” Mr Neil outlined. “The first legislation that dealt with a recognisable right to disconnect was enacted in France.”
“The labour chamber then held that employees were under no obligation to accept working from home or to bring their files or working tools home from work,” he explained.
“In 2004, the Supreme Court affirmed that decision, ruling that employees not being reachable on their mobile telephones outside working hours could not be called misconduct.”
“Those kinds of notions then spread from the judicial to the legislative sphere in France, they appeared in Italy in 2017, in Spain in 2018, and then across Germany,” he added.
The legislation that one sees across these jurisdictions has been described as “light touch” legislation because it was soon realised that a one-size-fits-all prescription was impossible to devise due to the many different requirements particular businesses had for when their employees were required to work, Mr Neil illuminated.
“A one-size-fits-all prescription flirted with, tried, and failed.
“What the jurisdictions then did was to say significant employers were obliged to promulgate policies that reflected and recognised a right to disconnect, largely by laying down rules to protect workers’ rights, not to respond to work communications outside defined core hours, and a concomitant right not to be punished for not responding,” explained Mr Neil.
“In Ireland in 2021, a code of practice was legislated, which specifically recognised a right to disconnect.”
What is unique about the right to disconnect laws in Ireland is that both employers and employees hold “a duty to respect other employees’ rights to disconnect — bombarding fellow workers with emails or telephone calls outside of normal working hours.”
Headline lessons for Australia
“The headline lesson from the overseas experience is the unworkability and the undesirability of a one-size-fits-all approach,” stated Mr Neil.
“A one-size-fits-all approach has been proved to be impossible to devise in any sensible way, even for the legal profession as a whole.
“Even within particular businesses, a one-size-fits-all approach overseas has proven to be difficult, and I think that that’s an important lesson for us here.”
There is certainly an appetite for legislation to come in in Australia, noted Mr Neil.
Mr Neil discussed how the focus on it is being seen in Australia, which was shown in the right to disconnect bill introduced in March by leader of the Greens, Adam Bandt.
“There are a number of enterprise bargaining negotiations underway in which the right to disconnect has featured in the academic sector, the tertiary academic sector in the finance sector,” he added.
“The issue is also part of a wider interest in the subject of reasonable working hours, as is seen to be being litigated in the Rugg v Ryan case in the Federal Court at the moment.
“Which marks the first time that reasonable working hours under the Fair Work Act is being concentrated upon.”
“I predict working hours and boundaries will be a substantial industrial and employment issue in the foreseeable future,” noted Mr Neil.
“There are growing questions about what hours are reasonable, both the spread of hours and the number of hours.
“There is interest in the concept of a four-day working week.
“All this indicates a real focus on working hours.”
“There is set to be a real focus in industrial and employment circles on working hours,” Mr Neil said, “change will come; it is inevitable”.
“We will never again go back to the way in which work was performed, regulated, and organised before the pandemic. That is certain,” he said.
