The right to disconnect and managing the psychosocial risks of being ‘online’ outside office hours

Employees’ ‘right to disconnect’

In a recent appeal before the Federal Court of Australia, the Full Court considered the “inherent power imbalance that exists between employers and employees”, in interpreting a provision of the Fair Work Act 2009 (Cth) (FW Act), that affords employees the protection to not be required to work on a public holiday.³ Under the FW Act, an employer may request an employee work on a public holiday; but such a request can be refused where it is not reasonable or where the refusal is reasonable.⁴

In allowing the appeal, the Court considered the bounds of this protection and the meaning of a “request” under the FW Act. The Court found that a “request” connotes its ordinary meaning and requires employers to make a request in the form of a question, leaving the employee with a choice as to whether they will agree or refuse to work on a public holiday.⁵ Relevantly, the Court observed that employees will often feel compelled and not understand that they have the capacity to refuse a request that is unreasonable.⁶

The power imbalance to which the Court refers has likely informed the proposed Fair Work Amendment (Right to Disconnect) Bill 2023, which was first introduced on 20 March 2023 and is currently awaiting consideration by the Senate Selection of Bills Committee. The Bill seeks to include the ‘right to disconnect’ as part of the National Employment Standards. This amendment is intended to prevent employers from contacting employees outside of work hours and ensure that employees are not required to monitor, read or respond to work-related communications during out-of-work periods.⁷

In recommending the amendment, the Senate Select Committee on Work and Care contended that ‘emerging technologies should not tether workers to jobs outside paid working hours without formal agreement and recompense’, noting that such a right already existed in several other countries and some Australian workplaces.⁸ The Committee further argued that the perceived need to be available outside of working hours impacts mental health and productivity, exacerbates work-life stress and removes workers from the idea of ‘a fair day’s work for a fair day’s pay’.⁹

Unions have also more recently expressed support for the ‘right to disconnect’. For example, members of the United Services Union of New South Wales have voted in favour of a new Local Government (State) Award 2023, which incorporates the right to disconnect within its overtime provisions.¹⁰

The Finance Sector Union (FSU) is currently pursuing what it describes as an ‘ambitious agenda of improvements’ during bargaining negotiations with the Commonwealth Bank of Australia, including that employees be assured of their right to disconnect at the conclusion of their working day.¹¹ More broadly, the FSU promotes the right to disconnect as part of its broader policy position and ‘Working From Home: Guide to Best Practice¹²’.

Similarly, the National Tertiary Education Union has championed the right to disconnect as part of its campaign to improve terms and conditions of employment across the higher education sector and to delineate between the workplace and the private time of academics, educators and other staff.

With movement in the local government, higher education and finance sectors here in Australia and the increasing popularity of the right to disconnect overseas (particularly in Europe), we anticipate that the right to disconnect will become an increasingly hot topic amongst Australian workplaces.

We consider that momentum will likely be further fuelled by recent trends in employers directing employees to return to the office – which inevitably leads to considerations and discussions as to how to maintain flexibilities achieved during the COVID-19 pandemic (including protections around leisure time and flexible work arrangements) balanced against operational and business requirements. There is also the need for employers to carefully consider their health and safety obligations and to that end, there will be a greater need for engagement, consultation and consideration of the management of psychosocial hazards, including those which arise from role overload, poor organisational justice and change management.¹³

Employers’ duty to eliminate risks to health and safety

The Australian WHS Survey report from the Centre for Work Health and Safety¹⁴ reporting on results from a survey of over 1,000 workers in January 2023 found that “…[t]he recent explosion of home and flexible working arrangements was also discussed as an important contributing factor [to the increase in psychosocial harm]…” and “…due to the ability to work from home, they were working longer hours, experiencing increased demands from their superiors or finding it hard to ‘switch off’ from work outside of work hours”.¹⁵

Under the WHS Act, PCBUs have a duty to ensure that risks to workers’ health and safety are eliminated or, where it is not reasonably practicable to do so, minimised so far as is reasonably practicable.¹⁶ The Queensland Government’s Code of Practice on ‘Managing the risk of psychosocial hazards at work’ (Code) came into effect on 1 April 2023 and relevantly identifies ‘high job demands’ which may include ‘challenging work hours’ and ‘unrealistic expectations to be responsive outside work hours’ as a common psychosocial hazard.¹⁷

Undertaking psychosocial hazard identification can occur at an organisational level, through workplace culture or ‘pulse’ surveys and reviews of available data including turnover rates, sick leave, compensation claims, complaints and grievances and at a task/role-specific level, through gathering information from individual workers or teams. When collecting worker feedback, the Code suggests PCBUs should look for indications that workers are stressed or emotionally exhausted by their workload, feel coerced to work beyond capacity, experience feelings of failure for not being able to meet unrealistic expectations or are concerned about understaffing.¹⁸

So what can employers do?

The Code provides some example strategies for redesigning work systems to control psychosocial hazards, so far as is reasonably practicable, including:

• setting achievable performance standards and workloads for the number of workers, work hours and their skillsets;
• providing sufficient cover for workers who are on leave;
• implementing workload reporting systems and scheduling regular opportunities to review workloads with staff; and
• encouraging work practices and systems that allow workers to disconnect from work outside of work hours.¹⁹

Managing compliance with legal obligations under Work Health and Safety legislation including the specific Regulations addressing psychosocial risks (see our previous blog article) and the FW Act requires a multifaceted approach and may consist of a consultation strategy, comprehensive risk assessment, compliance gap analysis; potential structural changes to governance systems; provision of information and training at all levels and updated policies, procedures and reporting structures.

If you require assistance in regards to addressing these risks or have any questions regarding the matters raised in this article, please do not hesitate to contact us.