Greens Back the ‘Right of Workers to Disconnect After-Hours’ Amid Contentious IR Debate

Office workers are seen at lunch break at Martin Place in Sydney, Australia Dec. 12, 2018. AAP Image/Mick Tsikas

Labor is edging closer to being able to pass its contentious industrial relations Bill, called “Closing Loopholes,” after securing the support first of former Greens Senator Lidia Thorpe this morning, and then the federal Green Party this afternoon.

It now needs the support of just one crossbench senator.

Ms. Thorpe posted on X (formerly Twitter) this morning announcing that she had successfully negotiated greater protections for casuals, saying she had been speaking with the office of Workplace Relations Minister Tony Burke over the last few months. However, she did not go into detail on the specific concessions she'd won.

It means the government still needs the vote of one of two crossbench senators with whom it has been negotiating: David Pocock and Jacqui Lambie.

Senator Lambie Still Opposed, Senator Pocock ‘Getting Closer’

Ms. Lambie has said she was against “right to disconnect” provisions, which gives employees the right to not be contacted by their boss outside of certain hours—a provision initially included at the behest of the Greens.

She said she felt it would create “argy-bargy” in companies that legitimately needed employees to conduct work outside of normal hours and that there were already enough protections for workers who felt they were being exploited.

“I think going through COVID there is more than enough flexibility for Australian workers out there already and I just am really, really concerned,” the senator said.

“Nobody has ever spoken to me in the 10 years I’ve been in and out of politics, about phone calls after hours, not one person and even going through this [the passage of the legislation] not one person,” she said. “So, I just think if there’s not a problem why are we trying to fix it?”

However, Senator Pocock said he was “getting close” to agreeing to support the legislation, and had been discussing making the process of converting casual employees to permanent much simpler, as well as protections for gig workers that balanced the need for flexibility.

“It’s been a good negotiation, we’ve pushed the government really hard to make this legislation work to provide the flexibility that is needed and there is a huge amount in it,” he told Sky News.

Greens Claim the Win

Greens Leader Adam Bandt confirmed the two parties had reached an agreement on the legislation today, and that his party would support it through the Senate.

“The Greens have won workers a right to disconnect,” Mr Bandt said. “Whether you’re a nurse, teacher, or hospo worker, the Greens believe you shouldn’t have to answer calls or texts from your boss on your day off or after hours if you’re not being paid for it ... we have reclaimed the weekend for millions of people who need that time off.

“This is especially a big win for women and carers who are often forced to juggle work and caring responsibilities.”

Part of a wide-ranging slate of industrial relations reforms, the “right to disconnect” has been particularly contentious for business.

The Australian Chamber of Commerce and Industry (ACCI) Director of Workplace Relations Jessica Tinsley said both employers and employees should be worried that the proposal impinges on flexible work, which is “incredibly important for women and others, but particularly women who have finally started to get a foothold in the workplace as these workplaces become more flexible.”

She said the “right to disconnect” would more accurately be called “unlawfulness to contact your employees after hours.”

‘Reasonableness’ Not Defined: Chamber of Commerce

The Chamber was concerned that the legislation relied on the concept of “reasonableness“ which she said was ill-defined and would end up being decided ”case by case." 

“No piece of legislation is going to properly be able to account for every single situation ... would it need to go through every example, or could it just [give] examples of what’s reasonable and then that gets judged if there’s a challenge to it?” she asked.

“Obviously, we wouldn’t, we'd have to draft it in such a way that it would open up a range of different situations. We don’t want pages and pages of examples there. But this is a fundamental issue with this proposal. With so much legislation being signed [and] additional regulatory burdens on employers the moment [it’s] an enormous change in the industrial relations landscape.”

The Bill also raised the possibility of small businesses “having to test what is reasonable in the Fair Work Commission, which we know is an expensive process [and] is something that small businesses can’t afford right now.”

Employers would instead favour legislation similar to that in parts of Europe, where employees have a right not to reply.

“So the employer is not going to get in trouble for sending that accidental email after hours. They [the employee] just have an ability to say, ‘I’m going to deal with that in the morning.’ And that would be something that I think would be a lot more reasonable.”

Ms. Tinsley claimed business had not been consulted on the proposal.

Business is ‘Back at the Table,’ Minister Claims

But Workplace Relations Minister Tony Burke claims the government has had what he termed a “constructive meeting” with key business groups, and said: “I’m glad business is back at the table … and it doesn’t mean they’ll end up preferring the legislation to go through, but it does mean we could avoid some adverse consequences that they might be pointing to.”

While he hasn’t given details of any amendments the government may propose to the draft legislation, Mr. Burke did say: “It’s completely reasonable for an employer if they haven’t got a shift that hasn’t been filled to do a ring around to see if someone can do a shift.

“It’s completely reasonable if you’ve got a work email for the employer to be sending emails any time of day as long as there isn’t an expectation that you’re doing all the work in unpaid time. So those sorts of principles need to be worked through.”