Public servants getting a 'reasonable' right to disconnect (whatever that means)

Commonwealth public servants will have greater rights to disconnect from work outside of their normal working hours, with legislation protecting those rights kicking in late in August.

The new laws give the Fair Work Commission power to resolve disputes between managers and employees who don’t see eye-to-eye on the issue.

Guidance just issued by the Australian Public Service Commission tries to explain the changes, saying the legislation “grants all national system employees (which includes employees of Commonwealth agencies) an enforceable workplace right to refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of their working hours, unless such refusal is unreasonable”.

What constitutes “unreasonable” is somewhat vague and ensures that 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.

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

And in true bureaucratic speak, it says a lot without saying much at all.

“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,” it says.

If that’s not clear enough, the document goes on to muddy things up even further with a few more weasel words that basically wind up by saying it’s all a mystery and pretty much fair game.

“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, the list of matters included in the legislation is non-exhaustive, which means that any other relevant factors can also be taken into account, such as patterns of behaviour.

“The legislation does not define the term ‘contact.’ Agencies should interpret the term broadly to include any form of communication used to engage with employees, including phone calls, emails, texts, social media, and messaging services.”

What is clear – in the legislation and in the Commission’s attempt at explaining it to employees – is that the right to disconnect also enables an employee to “refuse to monitor, read or respond to work-related contact, or attempted contact, from a third party” outside of their working hours, unless such refusal is unreasonable.

A third party may include colleagues, clients, external stakeholders, members of the public, or employees in other agencies.

Was that clause put in to prevent the ELs and SES from trying to circumvent the new laws by recruiting mates to hound staff with messages and extra work after hours?

It’s an interesting component of the legislation and says a lot about how much trust the government has in its public sector hierarchy to not bully their staff.

There are obvious exceptions for Defence, the AFP and national security agencies, etc. But for most other Commonwealth employees, the legislation is not at all precise.

“Importantly, the right to disconnect does not prohibit a manager or third party from contacting or attempting to contact an employee outside of their working hours, but a manager can only expect an employee to monitor, read or respond to out-of-hours contact when it is reasonable to do so,” the APSC’s guidance reads.

Which brings us back to the question of exactly what constitutes being “reasonable”.

Is it not reasonable to expect that new legislation aimed at improving lives and workplace relations isn’t so ambiguous? And that formal attempts to explain it actually give clarification?

Instead, we get this: “The legislation provides that the nature of the employee’s role and level of responsibility is a relevant factor in determining whether an employee’s refusal to monitor, read or respond to contact is unreasonable.”

Sounds like, with a bit of creative manipulation of these unclear new rules, it could well turn out to be business as usual – except for the Fair Work Commission’s dispute-handling personnel.