ACTU joins in asking what 'unreasonable' means when it comes to the right to disconnect

What constitutes reasonable and unreasonable in the incoming right to disconnect laws is so vague the Australian Council of Trade Unions is now seeking greater clarification.

Region first raised the issue in relation to how the law will relate to public servants, pointing out that the legislation and official attempts at explaining them don’t really explain what exactly is an unreasonable excuse for refusing out-of-hours work contact.

The new right to disconnect will enable an employee to refuse to monitor, read or respond to work-related contact outside of their working hours unless it is unreasonable.

The Fair Work Commission has been tasked with developing a right to disconnect term to be included in all modern awards that set the minimum terms and conditions of workers in different industries and sectors.

It issued its draft term for consultation last month.

But just what constitutes “unreasonable” is somewhat vague and ensures the FWC is about to get far busier, which is why it is in the middle of a recruitment drive for more full-time personnel.

Neither does the legislation define the term “contact”.

Under the heading What is unreasonable refusal? the Australian Public Service Commission’s guidance memo attempts an explanation but really only cements the fact that it is a murky area of the legislation.

“Whether an employee’s refusal to monitor, read or respond to contact is unreasonable is an objective test based on what a reasonable person, having access to all the facts, would consider to be appropriate in the circumstances,” the guidance says.

Now the ACTU is seeking greater clarification on the legislation as it relates to the nation’s general workforce.

Unions are asking for more practical details to be included in the right-to-disconnect award terms currently being developed by the FWC, which will come into effect for most workers on 26 August, with those in small businesses waiting another year before they kick in.

In response to the draft, the ACTU is seeking improvements to spell out what should be taken into account in determining whether or not a refusal is unreasonable, to “better respect workers’ downtime, and to encourage employers to better manage work”.

Areas needing more clarification include when workers are on approved leave or an employer has not first taken all reasonable steps to minimise the need to contact workers outside of working hours, the union group says.

The ACTU also wants the onus to be placed firmly on employers to discourage their customers and clients from contacting employees outside of their working hours.

This would also extend to students and parents not unreasonably contacting teachers outside of school time.

“It should be a basic right that workers are paid for all the work they do,” ACTU president Michele O’Neil said.

“Excessive work demands increase stress and burnout at work and are impacting the mental health of Australians. Unions want a strong right to disconnect so working people have a healthy work-life balance.

“Workers shouldn’t have to respond to contact outside of work about work or about rostering for shifts they haven’t asked for, simply because their bosses were too disorganised.

“Unions are proposing a common-sense approach that will also benefit workers who are contacted by people other than their employer. If you’re a teacher, for example, you should be able to spend time with your loved ones on school holidays instead of dealing with work calls.

“The right to disconnect is an important win for workers to ensure Australians are not expected to work for free, and that is especially important given current cost-of-living pressures.”

The ACTU also wants the FWC to review the new provisions after 12 months to gauge how clear they are and whether any changes are needed to prevent unnecessary disputes that come about because of a lack of clarity around workers’ rights.

As it stands, the legislation provides the following list of matters that must be taken into account in determining whether an employee’s refusal to monitor, read or respond to contact is unreasonable:

• The reason for the contact or attempted contact
• How the contact or attempted contact is made, and the level of disruption the contact or attempted contact causes the employee
• The extent to which the employee is compensated to remain available to perform work during the period in which the contact or attempted contact is made or for working additional hours outside of the employee’s ordinary hours of work
• The nature of the employee’s role and level of responsibility, and
• The employee’s personal circumstances, including family or caring responsibilities.

However, as the guidance for public servants states, the list of matters included in the legislation is “non-exhaustive”, which means “any other relevant factors” can also be taken into account.

Curiously, “patterns of behaviour” is cited as one of the other possible relevant factors.