Australian workers could refuse to provide personal contact details to their employer for the purposes of out-of-hours communication, according to a ‘right to disconnect’ proposal put before the Fair Work Commission and defended by the Australian Council of Trade Unions.
The Fair Work Commission is in the final stages of creating a new ‘right to disconnect’ clause for the modern award system, ensuring workers are not penalised for declining work-related communications outside of their agreed hours.
Legislation underpinning those changes passed in February, leading the Fair Work Commission (FWC) to consult on how, exactly, the rules should apply.
The Australian Council of Trade Unions (ACTU) provided its draft clause to the FWC in May, arguing the final clause should go above and beyond the framework described by legislation.
If enacted, its preferred clause would require workplaces to inform workers of their right to disconnect, while alerting managers, supervisors, and relevant third parties not to expect workers to respond outside of their agreed-upon hours.
Simply giving a worker a laptop or work phone to take home should not guarantee out-of-office communications either, the union movement said.
“The provision of a mobile phone, laptop computer or other electronic device to an employee does not mean an employee is on-call,” according to the draft clause.
Workers would not be required to hand over their personal contact details for the purposes of out-of-hours commications, the submission added.
The union movement defended that position on Tuesday, arguing the framework laid out by legislation is not a blueprint for the final term, but merely a starting point.
“Giving effect to the rights in the [Fair Work Act 2009] is the least that an award term must do, but it does not mark the outer limit of such a term,” the ACTU said.
The “purpose and context” of the amendment warrants “an expansive, rather than constrictive approach to drafting the term – and any suggestion that the statutory term acts as an upper limit rather than a lower limit, is incorrect,” the union movement contended.
Industry groups see the matter very differently.
In its own May submission, the Australian Chamber of Commerce and Industry (ACCI) argued any terms that go above and beyond the framework outlined by legislation “would be incompatible with the modern awards objective which requires a minimum safety net of terms and conditions”.
It also argued moving beyond the terms required by legislation will limit workplace flexibility, making it harder for employers and employees to communicate out-of-hours, even when both parties agree to that kind of communication.
To counter this, the ACCI argued flexibility should go both ways and that any final clause should not unduly limit employers from making necessary contact.
“At each instance of communication or attempted communication,” the right to disconnect “must be construed in light of any existing, clear expectations set out in job descriptions, workplace policies, employment contracts or other informal arrangements in place,” ACCI said Tuesday.
The ACTU claims industry groups are simply lobbying for basic terms because they oppose a right to disconnect in its entirety.
“It appears that the employer group’s aim for the insertion of a minimal term has roots in a dissatisfaction with the creation of the statutory right, and a desire to prevent its introduction from having any real impact on Australian workplaces,” it said.
Other industry groups have more specific concerns about the ACTU’s draft clause.
In its May submission to the FWC, the Australian Retailers Association argued that the draft clause, as spelled out, could technically stop employers from contacting workers while they are on break.
“This would present operational challenges for small businesses such as retailers, restaurants and cafes that employ a small workforce,” it says.
The ACTU says its preferred model is still permissive of agreed-upon communications.
It “represents a common sense approach, providing practical and specific guidance on implementing the statutory right to disconnect and broad application across all industries and awards,” ACTU president Michele O’Neil said on Tuesday.
The right to disconnect will come into effect on August 26, 2024, for non-small business employers, with small businesses given another twelve months to prepare.
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Senior Business Journalist
Focused on the small business sector, David’s work covers the political, regulatory, and economic issues facing Australian entrepreneurs. Prior to joining SmartCompany, he was a reporter for Business Insider Australia. You can follow him on LinkedIn.
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