Right To Contact Workers After-Hours At the Heart of Workplace Reform Debate

Office workers are seen at lunch break at Martin Place in Sydney, Australia Dec. 12, 2018. (AAP Image/Mick Tsikas)

Negotiations are underway in Parliament over the federal government’s contentious industrial relations reform, called “Closing Loopholes.”

On Feb. 6, the Australian Chamber of Commerce and Industry (ACCI) issued a joint statement along with the CEOs of all national, state, and territory business chambers, calling on the Senate to “carefully reconsider the implications of this rushed and flawed industrial relations legislation.”

“We are gravely concerned that the proposed legislation will harm all business owners and operators, especially growing ones,” they said.

“The legislation will also impact the prospects for the very employees that it purports to protect. It will damage the communities that are reliant on the growth and resilience of local businesses.”

One aspect of concern to the ACCI is the so-called “right to disconnect,” which gives employees the right to not be contacted by their boss outside of certain hours.

The Chamber’s Director of Workplace Relations Jessica Tinsley said both employers and employees should be worried that the proposal impinges on flexible work, which is “incredibly important for women and others, but particularly women who have finally started to get a foothold in the workplace as these workplaces become more flexible.”

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She said the “right to disconnect” would more accurately be called “unlawfulness to contact your employees after hours.”

Terms Are Ill-Defined, Business Says

The Chamber was concerned that the legislation relied on the concept of “reasonableness“ which she said was ill-defined and would end up being decided ”case by case." 

“No piece of legislation is going to properly be able to account for every single situation ... would it need to go through every example, or could it just [give] examples of what’s reasonable and then that gets judged if there’s a challenge to it?” she asked.

“Obviously, we wouldn’t, we'd have to draft it in such a way that it would open up a range of different situations. We don’t want pages and pages of examples there. But this is a fundamental issue with this proposal. With so much legislation being signed [and] additional regulatory burdens on employers the moment [it’s] an enormous change in the industrial relations landscape.”

The Bill also raised the possibility of small businesses “having to test what is reasonable in the Fair Work Commission, which we know is an expensive process [and] is something that small businesses can’t afford right now.”

Employers would instead favour legislation similar to that in parts of Europe, where employees have a right not to reply.

“So the employer is not going to get in trouble for sending that accidental email after hours. They [the employee] just have an ability to say, ‘I’m going to deal with that in the morning.’ And that would be something that I think would be a lot more reasonable.”

Ms. Tinsley claimed business had not been consulted on the proposal.

Business is ‘Back at the Table,’ Minister claims

But Workplace Relations Minister Tony Burke claims the government has had what he termed a “constructive meeting” with key business groups, and said: “I’m glad business is back at the table … and it doesn’t mean they’ll end up preferring the legislation to go through, but it does mean we could avoid some adverse consequences that they might be pointing to.”

While he hasn’t given details of any amendments the government may propose to the draft legislation, Mr. Burke did say: “It’s completely reasonable for an employer if they haven’t got a shift that hasn’t been filled to do a ring around to see if someone can do a shift.

“It’s completely reasonable if you’ve got a work email for the employer to be sending emails any time of day as long as there isn’t an expectation that you’re doing all the work in unpaid time. So those sorts of principles need to be worked through.”

Meanwhile, Labor, which doesn’t have a majority in the Senate, is trying to secure the backing of crossbenchers Jacqui Lambie and David Pocock, who have also expressed disquiet about the “right to disconnect” provisions.

Ms. Lambie said she felt it would create “argy bargy” in companies that legitimately needed employees to conduct work outside of normal hours and that there were already enough protections for workers who felt they were being exploited.

“I think going through COVID there is more than enough flexibility for Australian workers out there already and I just am really, really concerned,” the senator said.

“Nobody has ever spoken to me in the 10 years I’ve been in and out of politics, about phone calls after hours, not one person and even going through this [the passage of the legislation] not one person,” she said. “So, I just think if there’s not a problem why are we trying to fix it?”

Reforms to Gig Economy Add Complexity, Employers Say

Another point of contention among the extensive reforms includes regulations of the gig economy and the rights of casual workers to convert to permanent full-time contracts, as well as rules around minimum pay and conditions.

The legislation would give the Fair Work Commission (FWC) the authority to set minimum standards for employee-like workers.

These measures too are opposed by business groups.

Jennifer Westacott, chief executive of the Business Council of Australia, said the proposal was “flawed, it’s not the way forward and the bill should not be passed because the bottom line is this will not close loopholes. It will open up more problems and the people who will be affected most are the Australian workers who will have lower productivity and lower wages, consumers and small businesses who are already struggling with a sea of red tape.”

This was echoed by AI Group CEO Innes Willox, who said the reform will only create uncertainty, and add complexity to, the employment of casuals, contractors, and labour hires.

“By any reasonable assessment, the kinds of changes being considered cannot fairly be characterised as just closing ‘loopholes,” he said, terming it a “wish list of the union movement.”