On Monday (20 March), 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.

“For too long, the boundaries between work and life have been blurred, continuous connection to work has been normalised and the pressure to be available at all hours of the day and night has been building for working people across the country,” Mr Bandt said in his second reading speech.

“With the proliferation of smartphones and advances in technology, work emails are only a notification away, and a phone call from your boss can interrupt a night out with friends or family. Workers are often expected to be on call 24/7 to answer emails, take calls and be available to their employers at a moment’s notice.”

In its October 2022 Interim Report, the Senate select committee on work and care recommended that the Department of Employment and Workplace Relations investigate legislative reforms to the Fair Work Act 2009, and other associated workplace laws, to enact a “right to disconnect” from work, including: to enable and support productive work from home and flexibility of work, protect the right of workers to disconnect from their job outside of contracted hours and to enforce this right with their employer, and place a positive duty on employers to reasonably accommodate the right wherever possible.

“This bill is not about limiting the ability of employers to communicate with their employees or to get work done. It will promote a healthier work culture that empowers working people to screen their bosses’ calls when they’re off the clock,” Mr Bandt argued.

“Our workplace laws were not drafted at a time when everyone had a smartphone in their pocket and was only a phone call, text message, or email away from their work. They were drafted at a time before the pandemic, when working via technology became the norm for many people and much more normal for everyone else.

“This bill will give people the right to log off when they clock off and to say, unless you’re getting paid for it, your time is your own, and your employer does not have the right to contact you by text, email or phone when you’re enjoying your leisure.”

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Application in legal workplaces

The “right to disconnect”, Lander & Rogers partners Sally Moten explained, is a growing trend with countries including France, Italy, Spain, and Belgium, among others, already introducing related laws to protect workers’ rights.

The traditional nine-to-five model of working is quickly becoming a thing of the past, she noted.

“Employees are looking for greater flexibility in how their work is arranged to balance work, family and life commitments. Many are actively pursuing arrangements that allow them to log on early and late to provide, for example, time in the middle of the afternoon to manage after-school commitments. A one-size-fits-all approach is unlikely to work,” she submitted.

However, Ms Moten went on, “rather than the introduction of even further regulation on employers, we are interested to see whether the issue about disconnecting from work can be adequately addressed by organisations proactively responding to the existing WHS legislation in addition to the incoming law across most states in Australia requiring them to eliminate or minimise psychosocial risks to workers”.

Legislating a right to disconnect, Clayton Utz partner Daniel Trindade argued, would be likely to have “significant unintended and problematic consequences” for the legal profession. 

“For example, would a lawyer who refuses to read an out-of-hours email or take a telephone call in relation to an urgent client or court matter be properly discharging their obligations to the administration of justice, to the court or to the client?

“Our profession requires us to put each of those interests ahead of our own, so exercising a personal right to ignore or refuse an email or telephone call may, unless it is due to health and safety issues, breach our professional obligations,” he advised.

The modern working environment in the legal profession generally provides flexibility, Mr Trindade continued, to try and manage both one’s work and other interests and needs. 

“Creating rigidity on one side, by creating an enforceable right to disconnect, is likely to have the effect of creating corresponding rigidity on the other side,” he suggested.

“For example, employers may consider not allowing flexibility to take time off during the day to attend appointments or errands if the employee won’t be available outside working hours to make that time up.”

Consequences for justice processes and getting the balance right

If this change is introduced, Mr Trindade noted, “there will also need to be significant changes made to court, tribunal and client expectations as to how quickly lawyers can perform certain work and deliver particular outcomes”.

“Currently, it seems that there is an expectation that most work can be completed within a short time after getting instructions or receiving orders from a court. Often, that work is done after standard working hours in order to meet those expectations,” he said.

“A return to the days when all work was performed during standard business hours would require concepts of modern case management and timeliness of work to be reconsidered.”

Maddocks partner Catherine Dunlop mused that “lawyers, like surgeons, senior executives and other professionals, are sometimes required to attend to urgent issues outside their normal working hours”.

However, we also know, from a health and safety perspective, “that there are real risks with workers never logging off and feeling that they need to check emails and texts around the clock. What we have also seen, particularly from the overseas experience, is that there are real advantages from disconnecting,” she said.

The issue for many organisations, Ms Dunlop surmised, will be how to get the balance right.

“That might be through better use of email, so if someone wants to send a late-night email to suit their timing, they might hit delayed send so that the recipient isn’t interrupted. Or it could mean using more text messaging to see if someone is free to take an urgent call or email, or putting in place great back-up options for a colleague when they are on leave,” she outlined.

“All of this will depend on the role and the organisation. The opportunity from this bill, whether it becomes law or not, is for organisations to identify if they can put in place simple measures right now that can better assist their teams to delineate between their work life and their personal life.”

Amendments not needed to achieve best practice

In a social world “intoxicated by technology”, Coutts Lawyers & Conveyancers partner Karena Nicholls reflected, the very idea of the right to disconnect seems reasonable.

However, she added, “the real reality of it is, people value time and flexible arrangements, which, in turn, requires a level of transparency and access to allow the flexibility to work both ways”. 

“We don’t need a bill to disconnect, you need to learn self-discipline and the ability to set boundaries that are negotiated with your employer,” she posited.

“There is no obligation to check emails and your phone after your working hours; however, in the industry of law, lots can happen overnight, especially when deals are done, hearings are in motion and demands of the legal profession cannot wait. Good planning, time management and a great team can help you with having downtime.”

Ms Nicholls’ advice is to bring in such strict boundaries will affect the flexibility offered to teams.

“Many of us working parents make it work around the family obligations with before and after school care or daycare plus the challenges of after-school activities; if we make it strict so that working parents cannot work outside contracted hours, we may see significant financial impact to families as employers will need to cut back on the flexibility, so it doesn’t affect the bottom line,” she listed.

While Landers is of the view there is not necessarily a need for further legislation, Ms Moten mused, there is “lots of work” for organisations to do to practically resolve this complex issue of balancing work demands arising outside of regular hours with the demand from employees for greater flexibility in how their work is arranged, she stressed.

“Employers also need to be mindful of industrial instruments that may not have kept up with the demands for workplace flexibility and still require overtime to be paid for work performed outside of ordinary hours,” she said.

“To accommodate the right to disconnect, employers should conduct a risk assessment to better understand the risks and benefits presented by working outside of regular hours. Employers should then implement controls to minimise any risks identified, such as clear policies and guidelines regarding communication and work hours, as well as providing employees with the necessary technology and resources to work remotely.”