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How Australia could move forward on ‘right to disconnect’ laws
There are lessons to be learnt from other jurisdictions already making headway on the right to disconnect laws, according to a legal academic.
Emma Musgrave
Speaking on a recent episode of The Lawyers Weekly Show, Dr Gabrielle Golding (pictured), senior lecturer at the Adelaide Law School, discussed ways in which Australia could make a more meaningful move on the “right to disconnect”.
“The most well-known example is that in France. So, it’s the case in France that for a company with 50 or more employees, they must negotiate a policy around the right to disconnect from work for those employees in that business,” Dr Golding said.
“Now, there is, I think, a lot of benefit in having that as law in France, in the sense that it is forcing conversations to happen in those larger businesses, but it doesn’t necessarily mean that businesses with less than 50 employees are seeing the benefit of that. It also doesn’t mean that there is a hard and fast rule about what the right to disconnect actually is defined as, because it could vary very much between each business depending on what policy it is that they negotiate.
“We’re also really yet to see any firm prosecution under the new laws to suggest that they’ve been breached, as in an employee bringing an action suggesting that they have had their right to disconnect breached somehow. So, look, I think, in theory, the laws seem to be working well, but we need to see, I guess, with some more time as it progresses, as to how effective they necessarily are.”
That being said, there are already lessons that can be taken from other jurisdictions making a move on the right to disconnect.
Earlier this year, Greens leader Adam Bandt MP introduced the Fair Work Amendment (Right to Disconnect) Bill 2023 to provide workers with the freedom to switch off once they clock off from work.
“If one looks at the wording of the right to disconnect, as the Greens have framed it in that draft bill, it’s quite broad. It actually is more prescriptive, I think, than the France option, where it is intended to apply to all Australian employees who are employed permanently. So, in that sense, the drafting has had to probably be very careful to ensure that it is capturing a wide number of people,” Dr Golding said.
“Secondly, [it’s important to allow] for situations where flexibility needs to be upheld so that you are accommodating for all different types of workplaces to actually properly engage with this right to disconnect.”
Dr Golding said legislating a right to disconnect in Australia would be the “gold standard” because it’s going to apply to most people and in a “universally understood way”. Alternatively, the second option, she said, “would be to look at the varying modern awards and enterprise agreements”.
“If you go down that path, however, you start to limit the range of employees that are actually going to have the benefit of this right to disconnect. And it’s going to then start to become more industry-specific, more occupational-specific, depending on which instrument it goes into,” Dr Golding said.
“The next option would be to look at including this right to disconnect in some kind of a policy document that’s agreed between employees in the business and the employer itself. And the beauty of this option would be that it can be tailored to different workplaces. It can take into account business-specific instances, it can take into account exceptions that might have to occur, it could take into account known instances where flexibility is needed, et cetera.
“So, it can be very much tailored to the individual workplace, and that might work quite nicely.”
The final option, according to Dr Golding, is to have a right to disconnect implied as a term by law.
“I think [we need to] identify that there is a clear need for a right to disconnect in some form in this country. And I can see space for this implied term by law to fill a gap in all employment contracts.
“But what I guess is missing is an employee who has been subject to overwork with the means to bring a case and the right legal representation to bring that type of a case. And then a judge who may or may not find that a right to disconnect is actually necessary to imply as a term by law into employment contracts. So, there’s a few roadblocks there.”
NB: This transcript has been edited slightly for publishing purposes. You can listen to the full episode here:
