Why the new right-to-disconnect laws don't quite cut it

Well, in Australia, you don't have to imagine it; that's the reality.

As of last week, the right-to-disconnect laws came into effect preventing workplaces from expecting their workers to be tied to their phones and emails after hours and allowing workers to refuse contact beyond knock off (including digital contact) unless that refusal is unreasonable.

Generally speaking, Australians spend up to 75 per cent of their time in work-related activities such as travelling to and from work, doing work, talking (or complaining) about work, engaging in work preparation activities and of course, responding to out of hours contact.

In fact, a recent Unions NSW study has identified that 85 per cent of Australians are working unpaid overtime with average respondents reporting they work 9.08 hours in unpaid overtime every week. That equates to 58.1 days or 11.6 weeks over a year, with the financial value of $21,563 for an average worker on a yearly income of $96,660.

But hey, if it's not really making that big of a difference to us, what does it matter?

Aside from the cost-of-living crisis making that $21,000 a year that should be in the worker's pocket and not their employer's hurt twice as much, 79 per cent of the study participants reported that this unpaid labour had a negative effect on their mental health, 69 per cent have had friends/family members comment on the extra unpaid labour they've been doing negatively, and only 17.4 per cent believed their workplace would be able to function without this unpaid labour.

Interestingly, the cost of this unpaid labour is also felt by the community at large, with almost half the respondents stating that they'd participate more in community volunteering if they didn't have to work unpaid overtime to the extent they currently did.

So we had a situation where workers were being exploited to the tune of $21,000 each per annum, to the detriment of their psychological and social health, with businesses largely relying on this sacrifice to survive.

That's not a sustainable business model.

Academic, Dr Gabrielle Golding from the University of Adelaide law school acknowledged that the experience of COVID-19 blurred the lines between work and personal lives. This lead to us being "trained" to be "constantly available within our homes and elsewhere outside the workplace."

While returning to the office has been largely rolled out over since then, the digital infrastructure that facilitated the working from home environment has remained with many hybrid roles becoming the "norm" in the labour market. This has really changed employer perspectives on employee contact and the expectations of the employee to be willing to work in what had traditionally been allocated as their personal space.

However, while the new laws are a step in the right direction for allowing workers to really knock off at the end of their shift, instead of keeping one eye on their phone/laptop waiting to hear from their boss, it is really important to note that this law doesn't prohibit the employer from contacting their employees.

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What it does, is solidify the worker's right to refuse to respond to the communication if (and only if) the nature of the communication means it's "unreasonable" for an employer to expect an employee to respond to that message after hours.

That said, what constitutes "unreasonable" and "reasonable" contact remains to be seen, and while the employer is able to contact the employee regardless, the onus (and thus the responsibility) remains with the employee to determine whether the communication request is reasonable to respond to or not, to inform their decision.

To be able to do this, they have to read the text or email, or listen to the voicemail, which has already engaged them in a work related activity and generated unpaid work while they decide if it's reasonable to ignore it and if not, how they'll respond.

Therefore, as long as the worker bears the responsibility of determining reasonability, this law is adding to their burden, rather than relieving it.