Australia moves down a path opened up by the EU to allow employees to step back from their job after hours - to 'disconnect - and it tries to draw clearer definitions for gig-economy workers. The courts will be busy

The big news in Australia this week is the arrival of a new right for employees – ‘the right to disconnect’. In short, it gives workers the right to ignore work out of hours.

While the right to disconnect made all the headlines, it’s only one of many measures in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill, a bill to reform Australia’s industrial relations. Other measures include minimum standards for workers in the gig economy and the right for casual workers to go permanent.     

According to Tony Burke, the Minister for Industrial Relations, this bill has ‘closed more of the workplace loopholes that have been undermining wages and worker safety’. He uses the term ‘more’ because the bill is the third tranche of IR reform introduced by the Labor government since its election less than two years ago. Traditional territory for a center-left government.

Is the latest tranche good policy? Unsurprisingly, we’ve seen the usual responses from the usual suspects. Unions and workers applaud the various measures as progressive and long overdue. Business groups and employers argue that they add complexity and uncertainty.

It’s notable that the right to disconnect, the measure that has garnered the most attention, was in fact the result of an amendment to the bill by the Greens Party.

It grants employees the right to ‘refuse to monitor, read or respond to contact, or attempted contact’ from an employer or work-related third party ‘unless the refusal is unreasonable’.      

The factors considered in determining reasonableness include the reason for the contact, the level of disruption caused by the contact, the extent to which the employee is compensated to be available for contact, the nature of the employee’s role and level of responsibility, and the employee’s personal circumstances (including family or caring responsibilities).  

You can see the challenges in converting what seems like an unobjectionable idea into legislation. IR lawyers will be rubbing their hands together in anticipation.

Prime Minister Anthony Albanese described the new right as ‘just a commonsense approach so that workers can’t be punished for not being available 24 hours a day’. Critics counter that  dealing with such a fact specific issue should be left to the common sense of the parties in each individual case and does not require legislation.

In an age of comprehensive connectivity, ‘availability creep’ is clearly a valid concern. The line between work and non-work has blurred with many employers expecting staff to deal 24/7 with work-related texts, emails, and phone calls.

The problem has been exacerbated by the ‘working from home’ revolution. Understandably, some employers see a quid pro quo here. In return for the greater flexibility allowed by working from home, they consider it reasonable for employees to deal with work issues outside the standard hours of work.

Interestingly, Australia’s right to disconnect made headlines around the world, including in the UK Times and the New York Times. The latter referred to Australian workers as ‘already among the world’s best-rested and most personally fulfilled employees’.

Perhaps this is an anglosphere response. The right to disconnect is not that revolutionary. It already exists in many European countries. Indeed, many existing enterprise agreements in Australia already contain some form of right to disconnect. 

Consistent with Australia’s adversarial political environment, the leader of the opposition Peter Dutton has vowed to repeal the right to disconnect when next in government.

Another area of reform is ‘casual employment’. A person can only be taken on as a casual worker if there is no ‘firm advance commitment to continuing and indefinite work’. The status is determined by the position at the outset of the relationship and not subsequent events. The key is the ‘real substance, practical reality and true nature of the employment relationship’. 

If the arrangement does subsequently take on a more permanent nature, the worker will have the right to convert to a permanent role in certain circumstances.

Significantly, the latest bill also introduces new definitions of ‘employee’ and ‘employer’ into the Fair Work Act. This is relevant in determining the rights and entitlements of a worker.

Technically, the new employee definition replaces previous judicial authority on the question of what constitutes an employee. Nevertheless, the legislation relies on identifying the ‘real substance, practical reality and true nature of the relationship’, and that will undoubtedly require consideration by the courts.

Another significant challenge in IR is the impact of the ‘gig economy’. The Australian Parliament recognises the ‘risks and opportunities for gig economy workers, many of whom are characterised as independent contractors rather than employees and therefore lack many workplace entitlements and protections’.

To address this lack, the new bill creates a new class of ‘employee-like workers’ who obtain work via ‘digital labour platforms which facilitate labour transactions between workers and businesses’. The Fair Work Commission will be authorised to set minimum standards for these workers. This could include allowing the operators of digital labour platforms to enter into collective agreements with organisations representing employee-like workers. 

There are various predictions that these changes will add hundreds of millions of dollars a year to the income of gig economy workers in Australia.    

If so, it’s fascinating to read the response from Uber (Australia and NZ) –

The Closing Loopholes Bill is a significant step forward in ensuring a sustainable future for Australia’s gig economy. We applaud the Parliament for recognising the unique nature of platform work and taking this bold step to modernise Australia’s industrial relations system for new and emerging forms of work.

Unfortunately for the Labor government, it’s unlikely that many other Australian businesses hold such a positive view of its efforts at ‘closing loopholes’.

*Ross Stitt is a freelance writer with a PhD in political science. He is a New Zealander based in Sydney. His articles are part of our 'Understanding Australia' series.