The right to disconnect: an idea borrowed from Nirvana

Australia's Federal Parliament has yielded yet another legislative jewel, the Fair Work Amendment (Right to Disconnect) Bill 2023, which aims to amend the Fair Work Act 2009. It is proposed to insert a Section 64A, which deals with the right to disconnect outside of working hours. The proposal emanates from the Greens party, and its sponsor is the Greens Leader, Mr Adam Bandt.

Section 64A stipulates:

(1)  An employer must not contact an employee outside of the employee’s hours of work (including during periods of leave), unless:

       (a)  the reason for the contact is an emergency or a genuine welfare matter; or

       (b)  the employee is in receipt of an availability allowance for the period during which the contact is made.

(2)  An employee is not required to monitor, read or respond to emails, telephone calls or any other kind of communication from an employer outside of the employee’s hours of work (including during periods of leave) unless the employee is in receipt of an availability allowance for the period during which the communication is made.

(3)  In this section:

availability allowance, for a period, means an allowance for being rostered, or otherwise directed by an employer, to remain available to perform work during the period.

As any astute person knows, this legislative wording is so wide as to be meaningless. Indeed, what is the meaning of “an emergency … matter" or a "genuine welfare matter”? These issues are subjectively determined, and there is no objective standard that would enable people to satisfactorily measure their action against a set of clear rules to decide this byzantine linguistic nightmare.

Over time, industry practices that regulate the relationship between employers, employees, clients, and customers, have developed and, provided they work, it is imprudent to tinker with them. For example, in academia, academics switch off during the holiday season, leaving behind a pre-written e-mail message automatically sent to those who contact them over the holidays. Such message typically informs that the academic will have no or only intermittent access to their e-mail messages and will respond when they return to duty. Such a practice, while it has enshrined itself into our academic work culture, often infuriates, and certainly frustrates, those who want to enhance their academic profile during the long vacation. Nevertheless, the practice is reluctantly accepted.

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The premise behind this legislative push is clear. It is a privacy rights measure which erects a high wall of separation between the workplace and the home environment. But the proposed new rule, because of its generality, is unworkable and should be rescinded by the Opposition if it ever comes to power again in the woke-infested environment of Australia. The Federal Opposition Leader, Peter Dutton, has since confirmed that the amendment, if duly made to the Fair Work Act 2009, will be repealed by his government.

The second paragraph of section 64A reveals that the proposed new law might actually be an attempt by the Greens Party to artificially raise the income of workers. Indeed, by virtue of the specific language of the legislation, employers would be allowed to contact their employees if they have paid an ‘availability allowance’, a new phrase that will soon join the lexicon of linguistic abominations.

Governmental overreach

The proposed legislation defies the development of normal human relations. What if the employer has organised a BBQ for his employees (outside work hours)? It could hardly be seen as an "emergency" and yet, this is often done as a team-building exercise (thus connected with the workplace). Would the effect of the implementation of the legislative proposal be that such an activity is outlawed? What about the employer’s Christmas party? The point is that legislation that interferes with the normal way in which people behave in a work environment and in society is just irresponsible.

The proposed legislation also amounts to a blanket rule, the implementation of which is bad for business. This is because such legislation will hamper employers’ efforts to develop their businesses and to establish cordial relations, based on trust and respect, with their workforce. Many employers want the best for their employees. They consider their employees to be their company's greatest asset. They know very well that the future of their business actually depends on the well-being of their employees, and their ability to deliver services efficiently and with cordiality.   By contrast, the proponents of the proposed legislation often ignore or neglect the idea that the interaction between employees and employers is surely furthered by ethical and friendly considerations, or by respect for the dignity of others.

Of course, the proposed legislation encourages us to consider the work ethics of Australian employees. In Australia, there is a certain reluctance to embrace the Protestant work ethic expounded and celebrated in the sociological writings of Max Weber. Indeed, it is fair to say that, for the typical Australian, working is akin to an act of sacrifice. These people ‘work to live’ in the sense that work is perceived not as a pleasure, but as a means necessary to the accumulation of goods that can be used to sustain a materialistic life devoid of any transcendental or spiritual meaning.

In other words, most Australians do not perceive work as a dignifying thing and a way to improve oneself as a human being. This perception is exacerbated when our political leaders propose the adoption of legislation which has the purpose or effect of intensifying and fomenting animosity between employees and employers.

Obviously, one must concede that some forms of employment are not rewarding, just to put it mildly. However, the authors of this article feel extremely blessed that their academic work has never been regarded as a sacrifice. On the contrary, we consider it a great blessing that we are often working after normal hours and on weekends, precisely because we find our work as something meaningful, dignifying and profoundly rewarding.

To be fair, the proponents of this law proposal surely are quite imaginative because we would have never thought about proposing such a business sapping amendment to the Fair Work Act 2009. But Australian workers may welcome this amendment because it offers them yet another benefit that, however, is business unfriendly. The COVID-19 fiasco certainly revealed that Australian workers and businesses enjoyed being the beneficiary of the Government’s largesse – their compliant nature gave them a reason for not working in the pandemic environment.

It is time to promote the value of work ethics and disconnect from the relentless posturing of the social engineering elements in Parliament who, at least potentially, undermine interpersonal relations in the workplace. The Fair Work Amendment (Right to Disconnect) Bill 2023 is a totally unnecessary law, copied from the Nirvana land codebook. The proposed law, if implemented, will increase the cost of doing business in Australia, and weaken the link between employers and employees. When will sanity be restored?


Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. 

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. 

Zimmermann and Moens are the authors of ‘The Unlucky Country’ (Locke Press, 2024).

Image: Pexels


 

 

Showing 3 reactions

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  • Steven Meyer
    commented 2024-02-20 16:12:36 +1100
    Y’know I just can’t resist adding a few more comments to this dumpster.

    “The proposed law, if implemented, … weaken the link between employers and employees. When will sanity be restored?”

    What exactly is the nature of this “link”?

    It’s a commercial link. What is more it is a commercial link where the power lies mostly with the owners/controllers of large corporations. And they’re not shy about wielding it.

    “By contrast, the proponents of the proposed legislation often ignore or neglect the idea that the interaction between employees and employers is surely furthered by ethical and friendly considerations, or by respect for the dignity of others.”

    Ethical and friendly considerations? Respect for dignity? Between the bosses of large corporations and their workers? Seriously? In what universe?

    Strangely enough there was a bearded old Jew you all love to hate who was also concerned with the dignity of workers. But that’s another story.

    I see Gabriël A. Moens has an AM

    Car manufacturers often have to recall cars to repair manufacturing defects. Pity the body that hands out an “AM” can’t do the same.
  • Steven Meyer
    commented 2024-02-20 15:30:54 +1100
    Aside from the obligatory insertion of the word “woke” to signal to the faithful that this is something bad, Messrs Moens/Zimmerman have a point. This is probably unworkable.

    On the other hand I do think we need to do something to deter employers from intruding more than necessary on their employees private time.

    One solution: The employer has to pay employees say $2/minute or part thereof for phone calls during “off” times or $10/character for text messages.

    Any work resulting therefrom could be recompensed at, say, $100/hour.

    Strictly social occasions would be excluded. Also, employers would be allowed a certain number of phone calls and work outside regular hours before these charges kicked in so as to keep reasonable flexibility.

    “…will hamper employers’ efforts to develop their businesses and to establish cordial relations, based on trust and respect, with their workforce”

    Seriously?

    Businesses exist solely to generate profits for their owners and bonuses for their senior officials and directors. The welfare of their workforce, except in so far as it is necessary to keep the business profitable, is not a consideration. All but the terminally naive understand this. Employees know they will be dumped when it suits the business. Faithful service in the past will count for nought. Thus there is an inescapable adversarial element between employers and employees.

    “…there is a certain reluctance to embrace the Protestant work ethic expounded and celebrated in the sociological writings of Max Weber. Indeed, it is fair to say that, for the typical Australian, working is akin to an act of sacrifice. These people ‘work to live’ in the sense that work is perceived not as a pleasure, but as a means necessary to the accumulation of goods that can be used to sustain a materialistic life devoid of any transcendental or spiritual meaning.”

    I was going to deconstruct this but there’s no point. if you subscribe to this sort of fantasy you’ve already thrown yourself into some sort of black hole from which there is no coming back.

    Suffice to say that if you’re seeking a “transcendental meaning” you’re unlikely find it in the work you’re doing for a large corporation. That’s so long as you can keep your job at all.

    Mercatornet recently ran on article about “slavespeak”.

    This article is real slavespeak. Obey your masters until they dump you.
  • Gabriël Moens and Augusto Zimmermann