At a glance
Here’s a scenario many companies large and small might find difficult to swallow: at a certain date in the future, new employment laws come into effect obliging organisations with more than 50 employees to renegotiate a worker’s right to… ignore their smartphones.
Put simply, at agreed unsocial hours of the day, all employees would have the legal right to ignore work phone calls and emails, without repercussions from employers.
This is exactly what the French Government has requested of its companies from 1 January 2017 – Companies with more than 50 employees now have to consult staff on the most appropriate way of switching off and minimising how work encroaches on leisure time.
You already have the right to disconnect from work
Would this work in Australia? Alan McDonald, managing director of employment law firm McDonald Murholme, says this kind of requirement is already in place anyway – under Section 62 of the Fair Work Act 2009, an employer must not require an employee to work unreasonable urgent overtime hours and the employee can refuse to do so.
The employee’s personal circumstances, including the need for sleep and family responsibilities, can be relied upon by an employee in refusing to read and reply to emails after hours, he says.
In other words, the French may be intent on making their laws specific, but Australian law is readily interpreted to cover the same situation, albeit more broadly stated.
McDonald says the Act contains these kinds of contingencies, to avoid employee burnout, preserve family life and keep the social glue together. Section 62 is carefully drafted to protect the health, safety and family responsibilities of an employee. These are vital social considerations contained in the Act, to “preserve Australian social fabric”, he says.
“The Fair Work Act is as much a social statement as it is a statement of practical realities,” McDonald says.
Do employees complain about after-hours work?
No doubt, many miss family functions or school events due to the pressure of work and rarely complain about doing so under the Fair Work Act. The obligations that the Act impose are in that sense aspirational rather than practical, says McDonald.
It’s worth knowing that an employer who takes adverse action against an employee can be pursued under Section 342, even if McDonald says proving this might be difficult.
“To prove adverse action under section 342 is not straightforward because often employers will conceal the adverse action under some other, more overreaching lawful conduct.
“An employee who is vocal in asserting his/her workplace rights may be the first selected for redundancy at a time of structural change. The redundancy may be genuine and lawful, but the selection of the particular employee may not be.”
Jonathan Mamaril, principal of NB Lawyers, which advises employers, doesn’t encounter professional services employees complaining about being expected to answer emails or speak to clients outside normal hours, and says this is probably because they are remunerated for this responsibility.
He says it is an issue among lower-paid workers, where the work can be more physically tiring, and people feel they have to work longer hours because of workplace inefficiency.
Adding after-hours work to time off in lieu
McDonald says many workers expect to use email or otherwise contact people after hours. Business is global, but there are ways of compensating for this.
Anyone being requested to work “after hours” should be given time in lieu, he says.
“But we don’t want people to take leave a few days here and a few days there. It should be added on to the normal four weeks’ annual leave. It’s the best way to refresh people as employees.”
Switching off is unworkable across time zones
Jonathan Mamaril questions how a “switching off” law could actually work when people have to contact each other across interstate and international time zones.
He notes there are no fines for employers under the French legislation.
“There is no real punishment so I am not sure whether it will change behaviours because there are not many consequences.”
Nevertheless, if such a law became widespread, he says organisations might have to schedule staff to work in shifts, even in professional services.
Managers would have to be more creative about organising working hours and firms would probably have to pay more.
“There needs to be change in employers’ expectations so if people are going to be reading work emails after hours, are they going to be remunerated for that?”
McDonald says the current political mood is not to impose “more reasonable” social hours but quite the opposite. The Australian Government has many advocates who wish to dilute the current laws. “Our laws now work pretty well as they are,” he says. “We don’t need any more dilution of laws.”
Most employees want flexible work options
When accountancy and finance recruitment firm Hays surveyed 842 respondents on working conditions, 92 per cent said it was important their organisation had agile and flexible working options available.
Regional director David Cawley says that while employees clearly need time away from work to maintain a healthy lifestyle and balance, “I think there’d be a lot of debate about what’s considered ‘unsocial hours’ if similar legislation was considered here”.
Cawley says a growing number of Australians work flexibly or in temporary or contract roles and elect to work outside standard business hours, so they can meet personal needs such as caring for young children or an older relative or go surfing!
“The key is to ensure employees have a balance – that if they do check emails at night there is also flexibility during the day.
“That might mean they can go to a gym class or take an extra coffee break – there has to be a balance and there has to be trust. Otherwise employers have a real retention risk on their hands.”
Cawley offers this advice: keep the out-of-hours’ work to no more than 30 minutes a night. Let your colleagues know your available timeframe so if there’s anything that requires your attention in the evening, they are apprised as to when to send it.
“It gives them, and you, a strict window within which to deal with work issues outside business hours. Just make sure you stick to your 30-minute time limit.”