Right to disconnect: Tony Burke defends “reasonable” out-of-hours contact as SMEs demand to see fine print

It is reasonable for employers to email staff and enquire about shifts outside of working hours, Minister for Employment and Workplace Relations Tony Burke says, as proposed legislation that could give workers the ‘right to disconnect’ from their jobs leaves business groups both fearful and perplexed.

A new Senate committee report on the highly-contested Closing Loopholes industrial relations reform package has recommended a fresh amendment to the Fair Work Act that would give workers the right to log off their computers and switch off their work phones outside of working hours.

The recommendation was largely driven by the Greens, whose own employment spokesperson Senator Barbara Pocock says many modern workers undertake unpaid overtime because they are able to be contacted around-the-clock.

The committee recommended the ‘right to disconnect’ should be expressed in modern awards and enterprise agreements, with the Fair Work Commission empowered to “make ‘stop orders’ if a dispute cannot be resolved at the workplace level”.

The committee’s call adds to what has become a legislative saga surrounding the Closing Loopholes IR changes.

However, it fits with the Labor government’s broader focus on boosting wages and minimising what it sees as worker exploitation.

On the flip side, the Australian Chamber of Commerce and Industry fears a ‘right to disconnect’ could hinder workplace flexibility and undermine the concept of ‘reasonable working hours’.

Separately, the Business Council of Australia says the right could be detrimental to teams working across multiple time zones.

And with a draft version of the proposed amendment yet to be released, employer groups are concerned the legislation could level fines or other punishments for contacting workers once the working day is done.

Emails and texts still on the table

Taking to ABC’s RN Breakfast on Tuesday morning, Burke attempted to quell some of the most pressing fears over the proposed ‘right to disconnect’ amendment.

There are several methods of building the ‘right to disconnect’ into the Fair Work Act, he said, but maintained that basic forms of contact would be preserved in any proposed legislation.

“There is a whole lot that is completely reasonable from the employer,” he said.

“It is completely reasonable sending emails. It is completely reasonable contacting people for shifts.

“All those sorts of things are completely reasonable and we don’t want to get in the way of that.”

Burke pointed to businesses that have already embedded a ‘right to disconnect’ in their own workplace agreements as a proof of concept, and dismissed concerns over time zone limitations.

He also suggested fines are only one way of enforcing the new right.

“There are methods where it’s simply a right for the worker… where the employer can reach out, but if you don’t respond because it’s not your paid time, you’ve got to guarantee you can’t be punished for it,” he said.

“Now I reckon that’s a pretty good model.”

Greens Senator Barbara Pocock has also railed against concerns put forward by employer groups, denying the amendment would keep businesses in Perth from contacting colleagues working in east coast timezones, for example.

“This amendment is not a ban on calls and emails – it gives workplaces the opportunity to negotiate what is reasonable based on their work’s circumstances,” she said on Monday.

The Business Council of Australia “saying the sky will fall in is disingenuous and bad faith to those workers who are being exploited,” Pocock added.

Small business lobby shares concerns

Although big business advocates are among the most vocal opponents to the ‘right to disconnect’, and the Senate report highlights harms experienced in the teaching, healthcare, and policing sectors, the small business lobby has also shared its own concerns over the process.

Any proposed amendment should be released to the public for consultation and debate before being tabled in Parliament, according to the Council of Small Business Organisations Australia (COSBOA).

The “floated proposals for a ‘right to disconnect’ appear to have been scurried into this process very late in the day,” COSBOA said in its response to the Senate report, released on Monday.

“If Australia is going to have a conversation about about legislating a right to disconnect, there must be a proper process and consultation.”

Noting that public discussion has largely focused on major employers, COSBOA suggested the ability for an “owner-manager to ‘disconnect’ from their own work” is “fanciful”.

Crossbench support vital

The proposed amendment, and the broader Closing Loopholes package, are poised to be some of the most hotly-contested topics in the opening Parliamentary sitting weeks of 2024.

To secure the passage of its latest industrial relations reforms, Labor will push for the support of influential crossbenchers including independent Senator David Pocock and Senator Jacqui Lambie.

In these negotiations, the small business sector appears to have the ear of David Pocock.

“As our mental health continues to decline, and especially for young people, sensible guardrails are needed for workers’ wellbeing,” Pocock said in his own response to the Senate committee report.

“This is, however, a new area of regulation with very broad impacts across the workforce and I am anxious to ensure any changes are carefully thought through and tested for any unintended consequences.

“Additional resourcing” is required to develop regulatory guidance on any new workplace right, “particularly for small businesses,” Pocock added.

Burke is “hopeful” of securing the Senate crossbench support needed to pass the latest round of Closing Loopholes legislation, he told RN Breakfast.