By Samantha Maddern, Partner

If your staff are pushing for a right to disconnect from work, then perhaps all is not well in your workplace. But there are measures employers can, and should, take before it comes to that to ensure there is an appropriate work/life balance for employees while business needs are met.

Victorian police officers earn legal right to disconnect

Last week we learned of a ‘ground-breaking’ deal for Victorian police officers below a certain rank who will receive an ‘availability allowance’ while off duty for each hour they are required to be contactable, otherwise, they cannot be expected to respond to phone calls or emails outside their normal working hours (with limited exceptions such as in emergencies).[1]

The police union has welcomed this development as a means to combat so-called availability creep and hyper-vigilance which it says prevent police officers from effectively decompressing from work and adversely impacts their mental health.

Are there broader implications?

So, what does this mean for other Australian workers who may not be emergency service workers but who are, in theory, always contactable via mobile, email and social media platforms? This issue has assumed particular importance now that so many more Australians work more hours from home than they did prior to COVID-19.

In response to these changing work patterns, the ACTU would like to see a Working From Home Charter of Rights which fosters work/life balance by, among other things, including a right to disconnect. It is hard to disagree with ACTU Secretary Sally McManus’ statement that:

“in this new environment, it is even more important that workers are able to unplug and switch off from work and the expectations that workers are available for long and unsociable hours must be managed.”

In January 2021, the European Parliament adopted a provisional directive on the right to disconnect emphasising the potentially detrimental impact on workers’ physical and mental health and wellbeing.

Also in 2021, the Irish Government asked its Workplace Relations Commission to develop a code of practice on the right to disconnect to set out guidelines for employees and employers on best practice and approaches to employee disengagement outside normal working hours. This move was also driven by COVID-19 blurring the boundaries between people’s professional and private lives and advancements in technology which allow employees to be constantly accessible.

What can employers do?

The problem with a statutory right to disconnect, or even a Code of Practice, is that it would be extremely difficult, if not impossible, to create a right that suits all employers and all employees. Even within a single workplace, any ‘right to disconnect’ would still need to be sufficiently flexible to meet operational needs and accommodate employees’ reasonable needs. A one-size-fits-all approach absolutely will not work.

Hence, before your employees feel the need for any such right, it makes sense to develop, in consultation with affected staff, some guidelines or protocols. Here are some suggestions.

First, there needs to be an acknowledgment from all parties that mental health issues can arise where there is no boundary between work and home.

Second, an employer’s expectations regarding employees’ availability, contact-ability, response times and ‘working hours’ should be both reasonable and clearly communicated/understood. For example: if my manager is emailing / calling me on Friday night at 9:00 pm, am I expected to respond immediately, as soon as possible or can it wait til Monday? Problems arise where the parties’ expectations differ.

Third, flexibility is crucial. The same rules won’t work for all employees in your team, even employees who may do the same job but who have different needs due to, for example, their caring responsibilities.

Fourth, managers and supervisors might need specific training or coaching about respecting boundaries. Do they really need to email/call their employees right now or can it wait until the morning or on Monday?

Finally, technology might assist in protecting the boundary between work and home by encouraging both managers and employees to respect that boundary eg an automatic reminder to a user about to email a colleague out-of-hours that they are sending a message out-of-hours or delayed delivery of any email sent at night or over the weekend.

Further assistance?

It is likely we will see increased agitation from unions and employees for a legal right to disconnect from work, particularly in workplaces with a strong union presence and/or where ‘normal working hours’ are very fluid. For employers who persistently place unfair and unreasonable demands on their employees time ‘out of hours’, such a right may well be both appropriate and necessary. Sensible employers will, however, ensure there is no need for any such ‘right’ by adopting practices that are fair, flexible and reasonable, possibly enshrined in a policy or a code.[2]

Our team at Mills Oakley can assist with any queries you may have arising from your current or proposed practices.

[1] Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 [2020] FWCA 1578

[2] It would be wise to ensure any Code is like the Pirates Code from Pirates of the Caribbean (as Captain Barbossa famously explained to Miss Turner: ‘more what you’d call guidelines than actual rules’).