As boundaries between work and home vanish, employees need a 'right to disconnect'

If you have been in a children’s playground recently, you may have seen a distracted parent absorbed in an intense phone conversation, swatting a child away.

Sure, some are ordering tickets for The Wiggles, but most are not — they are working. They might have officially knocked off, be on leave or it might be a weekend. But as surely as if they were in the office, they are at work.

Many of us know that tug of double consciousness: the child’s pressing need pitted against a complex issue on the other end of the phone demanding every neurone we can muster.

You do not have to be a carer to feel this tug. It still finds plenty of people who just want some quiet time, an uninterrupted run, a life beyond work.

It’s the growth of this tug, affecting more and more women and men, which has fuelled the push for a “right to disconnect” from work. This includes a recent significant victory for Victoria Police employees to protect their time away from work.

Availability creep

Our forebears would not recognise the ephemeral way we work today, or the absence of boundaries around it. But powerful new technologies have disrupted last century’s clearer, more stable, predictable limits on the time and place of work.

This is called “availability creep”, where employees feel they need to be available all the time to answer emails, calls or simply deal with their workload.

And that was well before a pandemic that piled revolution upon revolution on the way we work. A 2020 mid-pandemic survey showed Australians were working 5.3 hours of unpaid overtime on average per week, up from 4.6 hours the year before.

These longer hours are often associated with job insecurity. In a labour market like Australia’s, where insecure work is widespread, there are strong incentives to “stay sweet” with the boss and work longer, harder and sometimes for nothing.

Health implications

So, work is now untethered from a workplace or a workday, and our workplace regulation lags well behind. This has serious implications for our mental health, work-life stress, productivity and a fair day’s work for a fair day’s pay.

Of course, flexibility is not all bad. As a researcher collecting evidence for decades about the case for greater flexibility for employees, I see silver linings in a pandemic that achieved almost overnight what decades of data-gathering could not: new ways of working that can suit workers (especially women) and their households.

Read more: Forget work-life balance – it's all about integration in the age of COVID-19

However, this change has a dark side. Digital work and work-from-home have shown themselves to drive long hours of work, and to pollute rest and family time. Poor sleep, stress, burnout, degraded relationships and distracted carers are part of the collateral damage.

Disconnecting in Australia and internationally

A growing international response attests to the importance of disconnection. And it has now reached our shores.

Last month, Victoria Police’s new Enterprise Bargaining Agreement (EBA) included the “right to disconnect” from work. It directs managers to respect leave and rest days and avoid contacting police officers outside work hours, unless in an emergency or to check on their welfare. The goal is to ensure that police, whose jobs are often stressful, can switch off from work when they knock off and get decent rest and recovery time.

The “right to disconnect” has taken several forms internationally in recent decades. At individual firm level, some large companies such as Volkswagen, BMW and Daimler now simply stop out-of-hours or holiday emails or calls.

Goldman Sachs has also recently re-stated its far from radical “Saturday rule”, under which junior bankers are not expected to be in the office from 9pm Friday to 9am Sunday.

The French example

Some countries now regulate the right nationally.

Since 2017, French companies employing more than 50 people have been required to engage in an annual negotiation with employee representatives to regulate digital devices to ensure respect for rest, personal life and family leave. If they can’t reach agreement, the employer must draw up a charter to define how employees can disconnect and must train and inform their workers about these strategies.

While enforcement of the French law has attracted criticism (as penalties are weak), it has fostered a national conversation —now reaching other countries like Greece, Spain and Ireland. In early 2021, the European Parliament voted to grant workers the right to refrain from email and calls outside working hours, including when on holidays or leave, as well as protection from adverse actions against those who disconnect.

What’s next for Australia?

The Victoria Police EBA has encouraged a new level of discussion in Australia. The ACTU has backed a right to disconnect, especially for workers in stressful jobs.

Individual businesses will now be examining their obligations to ensure maximum hours of work are adhered to and “reasonable” overtime and on-call work is managed to avoid possible claims for unpaid work.

Read more: A life of long weekends is alluring, but the shorter working day may be more practical

This week, The Sydney Morning Herald reported that supermarket giant Coles is trying to prevent out-of-hours work.

The consequences for companies can be expensive when digital work is not well managed. In 2018, the French arm of Rentokil was ordered to pay an ex-employee the equivalent of $A92,000 because it required him to leave his phone on to talk to customers and staff.

Beyond fair remuneration, a duty of care to provide a safe and healthy workplace is also implicated in digital work that leaks beyond working hours.

What needs to happen now

Large public sector workplaces are likely to follow Victoria Police’s example. However, EBAs now cover just 15% of workers, so this pathway won’t help most workers, many of whom are instead covered by one of the 100 or so industry or occupational modern awards.

These awards could be amended to include a right to disconnect. But more simply and comprehensively, the National Employment Standards (which apply to all workers regardless of whether covered by an award or an EBA) could be amended to provide an enforceable right to disconnect with consequences for its breach, alongside existing standards of maximum hours of work, flexibility and other minimum rights.

Given many women, low paid, private sector, un-unionised and relatively powerless workers in smaller workplaces have little chance of negotiating or enforcing a right to disconnect, it is vital the right to disconnect applies across the whole workforce.