No calls or mails after office hours: What’s in Australia’s ‘right to disconnect’ Bill?

Having passed the Senate on Thursday (February 8), the Bill will now go to the House of Representatives. Similar laws are in place in France, Italy and Belgium, while other countries have also toyed with such ideas. What is the ‘right to disconnect’ and why have some criticised it? Has it ever been suggested in India? We explain.

What is the ‘right to disconnect’?

It comes from a belief that today, with technology making it possible for employees to work from home with ease, many people no longer have definite working hours. A lot of communication and work also happens when workers are not in the office.

In 2022, Belgium’s Public Administration Minister Petra De Sutter told the BBC that the pandemic also added to blurring the distinction between work and home life. “The result will be stress and burnout and this is the real disease of today,” she said.

Have other countries, or India, experimented with ‘right to disconnect’ laws?

France was the first country to have introduced a ‘right to disconnect’ for employees, in 2017. “Employees are more and more connected during hours outside of the office,” Myriam El Khomri, then France’s Minister of Labour, said while speaking of the need for such a law.

According to a BBC report, it required that companies with more than 50 workers were obliged to draw up a charter of good conduct, setting out the hours when staff are not supposed to send or answer emails.

In India, Baramati MP Supriya Sule drafted a Private Member’s Bill for such a right, through the Right to Disconnect Bill of 2018, which was never taken up for discussion in the House.

It proposed that every registered company and society shall constitute Employees’ Welfare Committees consisting of its employees to assist employees in the negotiation of terms and conditions of out-of-work hours with employers.

Sireesha Vinnakota, a consultant who worked with Sule to draft the Bill as part of her team, said the draft was inspired by existing provisions globally. “In Germany, there was no formal legislation in place at the time, but the private automobile manufacturing companies (such as Volkswagen) were imposing such policies.” For instance, during post-work hours, company servers paused emails and other kinds of communications from reaching the employees.

The draft Bill also mentions a penalty “at the rate of one per cent of total employees’ remuneration” to be paid by companies for noncompliance with its provisions. If an employee works beyond work hours, they will be entitled to overtime at the normal wage rate. “Without holding a person accountable, you can’t expect things to be implemented,” Vinnakota says.

However, one line of criticism says that employees who point out the need to disconnect from work might be passed over for promotions and crucial tasks. She says these arguments were also advanced in debates over menstrual leaves and maternity leaves, that it would lead to the exclusion of women workers from the workforce for availing such policies.

“I think the best solution lies in the method of implementation of the right to disconnect in a particular workplace. Say an aggrieved employee has to fight his case, alleging they are being overlooked not because of their inefficiency but because they asked for this right. If they have to appeal this decision, there should be mechanisms existing to independently review employees’ performance. This allows for them to have proof of performance, perhaps. So, I don’t think it’s impossible,” she adds.

What does Australia’s Bill say on the ‘right to disconnect’?

The Bill is part of other changes introduced to industrial relations laws, through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill, 2023. It says, “An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.”

What does “unreasonable” mean here? Tony Burke, Australia’s Minister for Employment and Workplace Relations, said that it was understood bosses may have to contact employees even after work hours, at times.

“But if you’re in a job where you’re only paid for the exact hours that you’re working, some people are now constantly in a situation of getting in trouble if they’re not checking their emails, it is expected to be working for a whole lot of time that they’re not being paid. That’s just unreasonable,” he said.

The Bill says that factors such as the extent to which the employee is compensated for overtime work, the reason for the contact or attempted contact, and the level of disruption it causes to the employee will all be taken into account to judge whether the contact was reasonable.

In case an employee-employer dispute over such contact happens, they must first attempt to resolve it at the workplace through discussions between the parties. If that attempt fails, they may move to the Fair Work Commission, the country’s industrial relations tribunal. Refusing to follow an FWC order could mean potential fines for the employer.

What is the criticism against ‘right to disconnect’?

Critics such as Australia’s chambers of commerce criticised the provision and said in a statement: “We cannot allow industrial relations laws to make it harder for hard-working business owners to generate the wealth we enjoy as a nation.”

Andrew McKellar, chief executive officer of the Australian Chamber of Commerce and Industry, told The Guardian that the amendment could impact women’s participation in the workforce.

“This sort of heavy-handed legislation risks taking Australia back to a rigid working environment that is undesirable for parents, especially women,” McKellar said, adding “This rigidity also undermines the case for working from home, which appeals to many employees with family responsibilities.”

An article in The Conversation on the subject offered an alternative view, moving away from having all hours strictly accounted for. “Employers should focus on being flexible and should offer knowledge workers more autonomy around their availability. This is a significant shift that asks employers to trust their knowledge workers to deliver on their tasks.”

However, it said the right to disconnect can be the “catalyst” for better policies on work-life balance. More broadly, a “cultural shift that destigmatizes a less frenetic pace of work and allows employees more control over their work boundaries will more directly address the problem of overwork,” it added.