Australia looks set to introduce a bill this week giving workers the right to disconnect. The law would allow employees to ignore “unreasonable” out of hours calls and contact from their employer and appears to have the support of the majority of senators. Prime Minister Anthony Albanese said in support of the Bill; “What we are simply saying is that someone who isn’t being paid 24 hours a day shouldn’t be penalised if they’re not online and available 24 hours a day”.
It has been estimated that Australian employees work an average of six weeks unpaid overtime each year, equating to more than $A92 billion in unpaid wages across the economy.
The Bill follows overseas trends where a number of European Union countries, including France and Spain, already have similar laws in place.
But not everyone thinks this is a good idea. Business groups in Australia have advocated strongly against the changes arguing that they fly in the face of labour market moves towards greater flexibility and are an “over reach”. This, they say, cuts both ways with employees enjoying greater freedom to work when and where they want, but at the same time being available to meet the requirements of the business when needed.
So far there does not appear to be much of a groundswell for law change of this nature in New Zealand. Further, given its focus on productivity and supporting businesses, it is unlikely to be something that the current Government considers to be a priority.
What rights then do employees have in New Zealand to refuse to engage in out of hours work activities?
The starting point is section 67C of the Employment Relations Act which requires the agreed hours of work to be specified in an employee’s employment agreement. This includes the number of guaranteed hours, the days of the week they will be worked and start and finish times. However, the section further provides that the parties may agree to flexibility in relation to when the work is performed.
The Act also sets out specific requirements relating to “availability provisions” which apply where the employee’s work is conditional on the employer making it available, but the employee is required to accept that work if offered. Any such arrangements must be specified in the employment agreement and an employee is entitled to reasonable compensation for making themselves available in this way. Where work is performed pursuant to such an arrangement, employees are entitled to be paid for it in addition to receiving compensation for being available.
These clauses can only be used where the agreement also provides for guaranteed hours of work and there are genuine reasons based on reasonable grounds for including them, for example where it is not practicable for the employer to meet business demands without such an arrangement.
Whilst this provides some protection for most hourly paid workers, the Act contains a significant carve out for salaried employees. In particular, section 67D states that where an employee is paid a salary, the parties “may agree that the employee’s remuneration includes compensation for the employee making himself or herself available for work under an availability provision”. In other words, the expectations around availability must still be set out in the agreement, but there is no entitlement to additional compensation.
A typical clause of this nature might state the standard hours of work and then go on to say that these hours are a “minimum” and that the employee will also be required to undertake work outside of those hours in order to meet the requirements of the role. Further, it is common in salaried employee’s agreements to provide that the salary payable will constitute full compensation for all hours required to be worked and no overtime will be paid.
In such instances there is an expectation that employees will perform work outside of the standard hours if necessary to get the job done. However, employees are entitled to expect that such additional demands will be reasonable.
What is reasonable will depend on the nature of the role, but it may generally be expected that working an additional half hour or so on occasion at the end of the day or in the weekend will be acceptable. As may be the odd call, email or text over a weekend if there is a particularly urgent and important matter that cannot wait. However incessant contact from the boss over a weekend or late at night, or an expectation of regular weekend work, is likely to cross the line.
Our current laws leave open the opportunity for employees to be put under pressure to be available 24-7. In practice, parties to an employment relationship generally develop a mutual understanding of how they want to work together and flexibility can be mutually beneficial. However, where such arrangements are not based on a shared view and reciprocal, empowering employees with a legal right to say “no’, or at least disconnect, may have some merit.
This article was originally published in The Post
