By Wendy Yang -
New legislative changes will give employees the right to refuse to monitor, read, or respond to contact (or attempted contact) outside their work hours, unless that refusal is "unreasonable". What will this mean for lawyers who have traditionally been expected to work long hours and be responsive or available outside the traditional nine to five?
The right to disconnect, which forms part of the suite of changes brought about by the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (the “Act”), will come into effect on 26 August 2024 for non-small business employers and 26 August 2025 for small businesses.
Employees will have the right to refuse to monitor, read, or respond to contact (or attempted contact) from their employer or a third-party, including emails, messages or taking calls outside of their work hours, unless that refusal is “unreasonable”.
This is good news for employees and a positive step towards protecting employees from burnout. According to employment lawyer Carly Stebbing, Founder of Resolution123, “(The) concept of unreasonable excessive hours of work has existed in work, health and safety legislation, related codes and guidelines for years.”
Stebbing points out that the right to disconnect “existed under the National Employment Standards” but provisions in the Act were needed because “employers and employees don’t understand the National Employment Standards and what are ‘reasonable hours’”.
“Employers have a positive duty to remove psychosocial hazards at work and that includes not being ‘on’ all the time”.
Stebbing says the positive duty exists under Work, Health and Safety legislation because employers have a “duty to ensure the health and safety of the workplace including physical and psychological safety”.
“The problem is slow uptake and enforcement of those rights,” she said.
“(If) legislative rights are not policed or enforced by individual employers or watchdogs, then they are no better than the paper they are written on.”
What are the changes?
The Act sets out the matters that may be taken into account when determining whether an employee’s refusal of contact or attempted contact is unreasonable.
Where there is a dispute about the employee’s right to disconnect, the legislation creates a dispute resolution mechanism which allows workers to seek orders from the Fair Work Commission.
But Stebbing says at that point, the relationship has deteriorated.
“(The) Commission can only make orders if the employment is on foot, so it is not an attractive jurisdiction to bring a claim in,” she said.
Culture of working long hours
What does this mean for lawyers who have traditionally been expected to work long hours and be responsive or available outside of the traditional nine to five?
“There has been a view in the past that this is what you get paid for” but “there needs to be some boundary,” Carly Stebbing said.
A lawyer who was allegedly working 18 hours a day in the United Kingdom recently died and in Australia, there have been claims of lawyers at one firm sleeping in their offices to meet deadlines.
“Clients need to be managed to understand that lawyers are not exempt from work, health and safety rights and entitlements,” said Stebbing.
“There is a certain amount of work to be done after hours but it isn’t the norm and shouldn’t be assumed”.
“It is not in the interest of the lawyer, client or the firm to be working excessive hours,” she said.
Where to from here?
The right to disconnect and the right to not respond to calls or emails after hours are not novel concepts, and the Act does provide protections for employees.
“If you are a lawyer and you say that you are not available to take calls after a specific time and your employer takes disciplinary action or covert action against you, for instance you lost a bonus, you can bring a general protection claim. Adverse action can include disciplinary action against you,” said Stebbing. If your employment is still “on foot” then you can commence proceedings in the Fair Work Commission or the Federal Court. If the matter is not resolved at the Commission, then it is possible to proceed to the Federal Court.
“That’s where most employment lawyers look for claims because that is the jurisdiction where you can get civil penalties including general damages for hurt and humiliation and economic loss” said Stebbing.
While there has been an assumption that it is normal for lawyers to work outside their usual hours, Carly Stebbing believes there is “no sum of money that you can pay to a lawyer to compensate them to work excessive hours and be contactable 24/7 at the cost of mental health”.
“It is incumbent on us as lawyers to exercise our workplace rights and maintain personal boundaries”.
