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Smartphones allow us to connect with each other quicker and easier than ever before. Although you may welcome this convenience of connectivity in your social life, what about your work life? New digital technologies are blurring the lines between professional and personal spaces, and employees are consequently experiencing higher levels of stress. Several governments and individual companies have implemented guidelines to help combat the growing ‘always on’ work culture. Most recently, the French government introduced a new employment law to restore work-life balance – the right to disconnect.

The ‘Right to Disconnect’

The French government’s new legislation includes a chapter titled, “The Adaptation of Work Rights to the Digital Era”. Specifically, Article 25 creates the ‘right to disconnect’ from work when employees leave the office. The law creates an obligation for French businesses with more than 50 workers to make arrangements with employees about what hours they can and cannot contact them outside of office hours. If a company cannot come to an agreement with individual employees, they must create a charter or set of guidelines that explicitly states what they expect of employees and their rights outside of work.

In short, French workers now have a legal right to ‘switch off’ and will not be subject to any ramifications for failing to respond to emails in prescribed hours. This new protection has not, however, escaped criticism. The legislation does not include a penalty or fine for companies that fail to comply, and critics fear it gives employers more power over workers (for example, arranging with full-time employees to work more than the designated 35 hours per week). Despite the law’s shortcomings, employees in several other countries are eager to follow in France’s footsteps. So, is Australia one of them?

Is There an Equivalent Australian Law?

Sadly, there is no equivalent ‘right to disconnect’ in Australian employment law. However, Australia has several measures in place to protect employees, depending on your position and whether an award or enterprise agreement govern your employment relationship.

Under Australian Law, the standard full-time working week is set at 38 hours (unless stated otherwise in your employment agreement). An employer may require an employee to work “reasonable additional hours”. Under an award, these are typically paid as overtime. If your employer pays you above award wages, this may include working beyond the prescribed 38 hours. Award free employees can also be required to work additional hours. Traditionally working overtime or outside ordinary working hours will give the employee an entitlement to some form of penalty rate.

What is ‘Reasonable’?

So what then is ‘reasonable’? Subjective factors that will be considered include:

  • level of remuneration received by the employee;
  • any notice provided for the additional time required;
  • health and safety issues and risk associated with the overtime;
  • employee’s personal circumstances;
  • whether the employee has notified their employer that they can’t work overtime; and
  • what is expected and normal in that particular industry.

The notion of reasonableness is a major factor in Australian employment law. If a person’s job description includes liaising with an overseas office, it is unlikely they could refuse to attend an out of hours conference call, notwithstanding this exceeded an employee’s 38 hours core working hours. Requiring employees to be ‘on’ and available to answer emails regularly, however, is unlikely to be deemed reasonable.

It’s also incredibly difficult to monitor how many overtime hours an employee accrued. Employers must recognise that if they don’t calculate answering office emails or calls out of office hours as overtime, they may be liable for overtime pay. Although there is not an explicit ‘right to disconnect’ enshrined in our law,  Australians may still find respite from their employers requiring they be contactable and able to work at all hours.

Key Takeaways

Work-related stress and burnout are on the rise thanks, in part, to digital technology. However, government bodies and companies are taking note of the trend, and taking steps to limit the negative effects.

France is currently the only country to enact a law that provides employees a ‘right to disconnect’. However, this doesn’t mean that you don’t have employment rights. If your work-life balance is suffering at the hands of your colleagues and boss popping up on your phone at all hours, check with your employer to clarify whether this is part of your job description and whether they should pay you overtime. If you’re a business owner, consider implementing your own company policy about when you can contact employees outside of work, including on leave.

What do you think about France’s ‘right to disconnect’? Let us know your thoughts on LegalVision’s Twitter page.


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