Labor called out for shadowy dealings around ‘right to disconnect’ reform

Federal Labor and Greens have reached a deal regarding employees’ right to switch off after work. Some opposition was expected, but many are taking issue with how the proposals have been handled as opposed to the right itself.

Last week, the Business Council of Australia (BCA) said it feared a last-minute addition to the federal government’s industrial reforms would be “rammed through the Parliament” without necessary consultations.

The BCA was concerned that Minister for Employment and Workplace Relations Tony Burke would pressure Parliament to amend the Fair Work Act to add a “right to disconnect” without making the proposals public for long enough that stakeholders could respond.

“We are disappointed to see the government try to introduce the ‘right to disconnect’ amendment at the eleventh hour with no consultation and no detail on what it will entail, and we fear it will be rammed through the Parliament next week,” said BCA chief executive Bran Black.

Independent Senator David Pocock appeared to share similar concerns about potential politicking around the reform: “I note that drafting for the proposal to establish a statutory right to disconnect has not yet been publicly released for any form of consultation, or subject to the committee’s scrutiny process … and that is of concern.”

“This is … a new area of regulation with very broad impacts across the workforce, and I am anxious to any changes are carefully thought through,” he said.

Though discussions between parliamentarians have been ongoing this week, the proposal has indeed been shrouded in mystery all the way up until yesterday afternoon, when the Greens went public with the news they had secured support for their right to disconnect proposal.

The workplace bill will be amended to give employees an “enforceable right” to disconnect outside of work hours. Should the employer fail to comply, they could be issued a stop order by the Fair Work Commission (FWC), and continued disobedience could result in a financial penalty.

Greens Senator Barbara Pocock explained the law would give employees some recourse against employers who demonstrate a persistent disregard for work hours. Employees would be encouraged to take the issue up with their employers before going to the FWC.

“If that doesn’t work, and your employer, for example, persists in asking you to do something which you believe to be wrong and unreasonable, then you can go to the FWC, and they will have a look,” she said.

This was the model Mr Burke was considering last week, before he told the ABC he was toying with a different model, one that seemed to better align with concerned business interests.

Specifically, he said he was considering doing away with the financial penalty component and instead restricting employers from taking adverse action against employees who refuse to work outside of contracted hours.

This approach, said Mr Black, would better strike “the balanced, middle ground we have argued for and is a better approach than fining companies for undertaking their normal business hours”.

Andrew McKellar, Australian Chamber of Commerce and Industry chief executive, called the initial proposal a “silly idea”.

“Of course we need to have balance … but the idea that you can regulate for commonsense through legislation like this is fundamentally flawed. We don’t support it. We think that that is something that again is only going to add to complexity and increase the risk of litigation in the future,” he explained.

Since the Closing Loopholes Bill was first introduced to Parliament, the process has been fraught with controversy from across the aisle. This was touched on by Associate Professor at the University of Sydney, Chris F Wright, who told the Senate committee that a certain goldilocks mentality had emerged among opponents to the reforms.

“The same groups who claimed that the multi-employer bargaining reforms in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 were too ambiguous are now saying the provisions of Closing Loopholes Bill are too complex,” said Dr Wright.

The same faction that wanted to split the bill to expedite the passage of certain elements is now among those calling for a longer review period of the right to disconnect. That said, calling for some review of the proposal before it hits Parliament is hardly a big ask.

Significantly, the thrust of these challenges concerns Labor’s dealings around the right to disconnect and the specific nature of the proposals rather than the principle undergirding the right itself. However, that’s not to suggest that these criticisms do not exist.

The Australian Chamber of Commerce and Industry, for example, said the right would be a “blunt instrument which will do more harm than good”, while Ai Group chief executive Innes Willox questioned the need for such a right given that workplace legislation already protects the right of the employee to refuse to work unreasonable hours.

On the other hand, many believe that workplace legislation should change with the times as smartphones have made it so that bosses can be more connected to their employees than ever. Just because we’re working under different rooves doesn’t mean that workers are any less connected to their bosses. Digitally, many of us are joined at the hip.

The Australian Council of Trade Unions (ACTU), in its submission to the Senate inquiry, said it was in favour of the right in principle: “Many workers are in situations where they’re never able to stop work. This should be addressed.”

Prime Minister Anthony Albanese joined the fray on Wednesday (7 February), voicing his in-principle support for the right to disconnect.

“What we’re simply saying is, someone who’s not being paid 24 hours a day shouldn’t be penalised if they’re not online and available 24 hours a day,” he said.

Nick Wilson

Nick Wilson is a journalist with HR Leader. With a background in environmental law and communications consultancy, Nick has a passion for language and fact-driven storytelling.