An overwhelming majority of Queensland teachers have voted in favour of a deal giving them the right to disconnect outside of work hours. This marks the latest development in an ongoing effort by unions and government to enshrine employees’ right to disconnect into law.

Public school teachers in Queensland have voted by a 94 per cent margin for a proposed enterprise agreement that will give them the legal right to keep their work and home lives separate.

This deal is the newest of a number of inroads made by the public sector in encouraging employees to minimise digital communications and protect the sanctity of their personal lives. 

In April 2021, Victoria Police also introduced a ‘right to disconnect’ clause into a new enterprise agreement in order to help employees mentally detach from work and avoid ‘availability creep’ – that is, employees feeling that they must be available to respond to work requests at all hours of the day.

Australian unions have advocated for the right to disconnect to be rolled out nationally, citing the impact of the pandemic on the boundaries between work and home life. Countries such as Ireland, Italy, Spain, Belgium, France and Portugal have already passed national laws that protect employees’ home lives and keep ‘availability creep’ in check.

“It’s a hot topic coming out of the pandemic and the lockdowns, and our increased ability to work remotely,” says Andrew Jewell, Principal at Jewell Hancock Employment Lawyers. “During the pandemic, it was necessary for people to be contactable and available at home. That’s not so much the case now, and people are wanting to reinstate that break between work and home.”

So, can we expect a right to disconnect policy to be rolled out in Australia any time soon? 

According to Jewell, it would take some time before a specific legal right to disconnect is enshrined into the Fair Work Act. He explains that implementing a one-size-fits-all policy like this might be more complicated than it seems on the surface. 

“It’s difficult for the government to implement suddenly across the board when, for instance, a teacher’s role is very different to a senior lawyer’s role, which is very different to a factory worker which is very different from a sales rep. So it’s going to be quite hard for them to do anything that’s not industry-specific. You would have to use quite a general clause,” he says. 

“I think where it’s more likely to come up is in enterprise bargaining and individual employment contracts.”

Who would benefit most from a right to disconnect?

Although it was exacerbated by the pandemic, ‘availability creep’ is not a new problem. For employees in some sectors, there has long been an implied obligation to respond to messages and calls outside of work hours. 

It’s therefore not surprising that the post-COVID push for a right to disconnect is coming primarily from sectors where work and home life have traditionally been separate. 

For instance, while teachers might be accustomed to doing tasks such as lesson planning at home, during the lockdown period there was an increased expectation that they would also be contactable outside work hours.

“Now that they’re back in the classroom, what they’re trying to do is say, ‘Let’s reinstitute that barrier that has existed for all of history, except during the pandemic,’” says Jewell. 

The current skills shortage in teaching is another impetus for the sector to adopt a right to disconnect policy as a measure to improve talent attraction and retention, he says. 

Meanwhile, in sectors such as professional and client services, the presence of external stakeholders can make it more difficult for employers to enforce a right to disconnect policy. Moreover, many employees in these industries prefer a more adaptable schedule to a strict window of operation, says Jewell.

“Not everyone wants the right to disconnect,” he says. “In some industries, people like the ability to have flexibility and a bit less supervision from their employer. Their employer knows they’re going to get the job done, and that might sometimes include finishing early or working a bit later.”

“Ultimately, I think it all comes back to how seriously the employer is going to adhere to not just the words on the paper, but the principle behind it.” – Andrew Jewell, Principal at Jewell Hancock Employment Lawyers

While a strict right to disconnect policy might not be feasible for all industries, the rise of widespread burnout and poor mental health across the Australian workforce means that employers in all sectors should still be taking steps to help employees maintain a work-life balance as best they can.

Three things to keep in mind when implementing a right to disconnect policy

Jewell offers some tips for HR to introduce a policy that gives employees the right to set boundaries between their personal and professional lives.

1. Know your policy and its exceptions back-to-front

Particularly in industries where a right to disconnect is harder to enforce, it’s likely that organisations will stipulate in their policies that there will be exceptions to the rule during busy periods. 

Jewell notes the possibility that managers could use this as a loophole to disregard the principle behind the policy.

“If you believe in the spirit of [the policy], you won’t have those issues,” he says. “But, if you have managers in an organisation always saying, ‘This is an exception,’ because we’re always exceptionally busy, then the policy is going to have no meaning.”

To avoid situations like these, HR plays a critical role as an intermediary between employees and management to make sure that the exceptional circumstances aren’t abused.

2. Enforce your policy across the board

One of the complications that can arise with a right to disconnect clause is that some employees are less likely to exercise it than others. As a result, the policy can end up having a knock-on effect that puts those who do use it at a disadvantage. 

“You can imagine a scenario in, say, a law firm where your performance is tied to your billing,” says Jewell. “If the firm has a right to disconnect policy, and someone exercises that right to disconnect and someone else doesn’t, [the latter] is always going to bill more. And especially if your billing is one of the factors that comes into promotions, you’re basically incentivising people not to exercise that right.”

So that employees who make use of their right to disconnect do not face indirect discrimination, he says leaders must commit fully to the policy and ensure it’s consistently enforced from the outset.

3. Communicate the policy to external stakeholders

As well as educating managers around the details of a right to disconnect policy, leaders must also consider how the policy will impact stakeholders outside the business who are used to having their requests dealt with immediately, says Jewell.

“Traditionally, [clients] might expect answers to an email which is sent after hours. That introduces a level of complexity because it’s easy for us to say to our employee, ‘Pens down at 5:30pm, phones away, computers away.’ But how’s that going to work with the external stakeholders?

“It’s a matter of making sure everyone in your ecosystem is aware that you have the right to disconnect, and you take it very seriously. The employers have to push really strongly – they can’t just leave it to an employee to educate clients and stakeholders.

“Ultimately, I think it all comes back to how seriously the employer is going to adhere to not just the words on the paper, but the principle behind it.”

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