The limits of the ‘right to disconnect’

27 February 2024
Duncan Hart

I got an email from my union last week informing me that we’d just had a “union win”. I’m a casual worker at a university, and my union previously negotiated an enterprise agreement locking in pay rises that won’t make up for the last few years’ inflation.

So, eager to hear what this big win was, I opened the email. It was about new federal laws giving employees the “right to disconnect”:

“When this comes into effect in about 6 months, you can’t be required to monitor your emails or respond to work-related matters beyond your designated working hours, unless that requirement is reasonable. This applies to student contact as well as contact by your supervisor.”

Unpaid work is rife at universities. The combination of rampant casual and contract work, as well as the moral pressure of wanting to do a good job for your students, means that, whether it’s marking, teaching prep or many other things, you’re often not getting paid. While casuals scrabble for any paid hours, full-time academics find themselves with an unmanageable workload.

The “right to disconnect” in this situation would be at least some help.

Yet the idea that the new laws are a “union win” is overstated. The legislation says:

“If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply for the Fair Work Commission to ... make an order ... to stop taking certain actions.”

Fair Work has the power to tell the boss, if the employee exercising their “right to disconnect” is at risk of being victimised, or if the boss persists in harassing their employee, to stop or face a fine.

The problem here is that precarious employment and a lack of power at work are at the root of why bosses feel they can tell us what to do 24 hours a day. This legislation won’t change that, which means that very few people will be willing to risk having their shifts cut or being fired by taking their boss to Fair Work.

I asked a friend, who has worked long term as a casual in a jewellery chain, what he thinks about the new law.

“Well, in my work people are routinely asked to show up for opening the store half an hour before they are rostered, and we have to clean up every night, again after our roster ends”, he said. “Even when we clock off at the time that reflects our actual hours of work, the manager just alters it so that we never get paid for our extra time —this ends up being about half an hour at least every day.”

Another friend, Louisa, has recently been involved in leading a collective fight back at her employer, Mint My Desk, to be paid the legal minimum wage. How long did it take the Fair Work Ombudsman to address the clearly illegal situation at Mint My Desk?

“It’s been over five months since my workmates and I made a complaint to Fair Work, and while workers have had their pay go up, in most stores people still aren’t being paid legal wages, nor have we received the correct amount of back pay.”

That the workers can claim any win at all is mainly due to the fact that they stood together and took industrial action, rather than just relying on Fair Work to do the right thing.

A similar process to the “right to disconnect” exists for cases of bullying, with the commission able to issue a Stop Bullying Order. The legislation has been in place since 2014 and, like the new legislation, allows an employee to complain to the commission.

In the first fifteen months of the law’s operation, nearly 900 applications were made for an order, but only four were granted.

It’s certainly preferable to have better laws rather than worse laws. But, again, the question of a law being enforced often comes down to how well organised workers are in their workplace, not how compelling their individual submission to the relevant authority is.

Laws that properly address this issue are needed and welcome. But unless unions rebuild genuine collective power in the workplace, the new law will be only as good as the Fair Work Commission and Ombudsman are in advancing workers’ rights. That is, it will likely not make much difference in the real world.

What we really need is a union fight back.

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