Barbara Pocock (SA, Australian Greens) Share this | Hansard source

by leave—I move amendments (1) to (3) on sheet 2361 in my name:

(1) Clause 2, page 2 (after table item 9), insert:

(2) Schedule 1, page 38 (after line 14), after Part 7, insert:

Part 8 — Right to disconnect

Fair Work Act 2009

94 Section 12

Insert:

right to disconnect term means a term in a modern award that provides for the exercise of an employee's rights set out in subsections 333M(1) and (2).

Note: Section 333M deals with the right to disconnect.

95 At the end of Subdivision C of Division 3 of Part 2-3

Add:

149F Right to disconnect

A modern award must include a right to disconnect term.

Note: Right to disconnect term is defined in section 12.

96 At the end of section 321

Add:

Division 6 is about generally allowing an employee to refuse contact or attempted contact from their employer (or from a third party where the contact or attempted contact relates to their work) outside the employee's working hours. The FWC may deal with disputes between an employer and an employee about the right to disconnect, including by making orders to stop an employee from refusing contact or to stop an employer from taking certain actions.

97 At the end of Part 2-9

Add:

Division 6 — Employee right to disconnect

Subdivision A — Employee right to disconnect

333M Employee right to disconnect

(1) An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.

(2) An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee's working hours unless the refusal is unreasonable.

(3) Without limiting the matters that may be taken into account in determining whether a refusal is unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a) the reason for the contact or attempted contact;

(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

(c) the extent to which the employee is compensated:

(i) to remain available to perform work during the period in which the contact or attempted contact is made; or

(ii) for working additional hours outside of the employee's ordinary hours of work;

(d) the nature of the employee's role and the employee's level of responsibility;

(e) the employee's personal circumstances (including family or caring responsibilities).

Note: For the purposes of paragraph (c), the extent to which an employee is compensated includes any non-monetary compensation.

(4) For the avoidance of doubt, each of the rights in subsections (1) and (2) is a workplace right within the meaning of Part 3-1.

Note: The general protections provisions in Part 3-1 also prohibit the taking of adverse action by an employer against an employee because of a workplace right of the employee under this Division.

(5) For the avoidance of doubt, an employee's refusal to monitor, read or respond to contact, or attempted contact, from their employer, or from a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.

(6) For the avoidance of doubt, if:

(a) an employee is covered by an enterprise agreement; and

(b) the enterprise agreement includes a right to disconnect term that is more favourable to the employee than the rights in subsections (1) and (2);

the right to disconnect term in the agreement continues to apply to the employee.

Subdivision B — Disputes about the employee right to disconnect

333N Disputes about the employee right to disconnect

(1) This section applies if:

(a) there is a dispute between an employer and an employee because the employee has refused to monitor, read or respond to contact or attempted contact under subsection 333M(1) or (2) and:

(i) the employer reasonably believes that the refusal is unreasonable; or

(ii) the employer has asserted that the refusal is unreasonable and the employee reasonably believes the refusal is not unreasonable; or

(b) there is another dispute between the employer and the employee about the operation of section 333M.

Workplace level discussions

(2) In the first instance, the parties to the dispute mustattempt to resolve the dispute at the workplace level by discussions between the parties.

Application to FWC to deal with dispute

(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply for the FWC to do either or both of the following:

(a) make an order under section 333P (orders to stop refusing contact or to stop taking certain actions);

(b) otherwise deal with the dispute.

Representatives

(4) The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

(a) resolving the dispute; or

(b) applying to the FWC to make an order under section 333P or otherwise deal with the dispute; or

(c) the FWC dealing with the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

Subdivision C — Orders to stop refusing contact or to stop taking certain actions

333P Orders to stop refusing contact or to stop taking certain actions

(1) If an application made under subsection 333N(3) includes an application to make an order under this section and the FWC is satisfied that either or both of the following apply:

(a) an employee has unreasonably refused to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) and there is a risk the employee will continue to do so;

(b) an employee's refusal to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) is not unreasonable and there is a risk that the employer will:

(i) take disciplinary or other action against the employee because of the employer's belief that the refusal is unreasonable; or

(ii) continue to require the employee to monitor, read or respond to contact or attempted contact despite the employee's refusal to do so;

then the FWC may make an order under subsection (2).

(2) The FWC may make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount):

(a) if the FWC is satisfied that the circumstance set out in paragraph (1)(a) applies—to prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact; or

(b) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(i) applies—to prevent the employer from taking the action; or

(c) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(ii) applies—to prevent the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.

(3) The FWC must:

(a) start to deal with an application, to the extent that it consists of an application for an order under this section, within 14 days after the application is made; and

(b) deal with the application as soon as is reasonably practicable after the FWC starts to deal with it.

(4) Despite subsection (2), the FWC may dismiss an application made under subsection 333N(3), to the extent that it consists of an application for an order under this section, if the FWC considers that the application:

(a) is frivolous or vexatious; or

(b) might involve matters that relate to:

(i) Australia's defence; or

(ii) Australia's national security; or

(iii) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(iv) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss an application, see section 587.

(5) If an employer considers an application made under subsection 333N(3) (the original application) to be frivolous or vexatious, the employer may apply to the FWC:

(a) to have the original application dealt with expeditiously and efficiently; and

(b) a decision on the original application communicated by the FWC to the parties to the dispute in a timely way.

333Q Contravening an order

A person to whom an order under section 333P applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4-1).

333R Actions under work health and safety laws permitted

Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application made under subsection 333N(3) that includes an application for an order under section 333P.

Note: Ordinarily, if a person makes an application under subsection 333N(3) for an order under section 333P in relation to particular conduct, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the same conduct. This section removes that prohibition.

333S This Subdivision is not to prejudice Australia's defence, national security etc.

Nothing in this Subdivision requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:

(a) Australia's defence; or

(b) Australia's national security; or

(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

333T Declarations by the Director-General of Security

(1) Without limiting section 333S, the Director-General of Security may, by legislative instrument, declare that all or specified provisions of this subdivision do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

333U Declarations by the Director-General of ASIS

(1) Without limiting section 333S, the Director-General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Subdivision do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

Subdivision D — Dealing with disputes in other ways

333V Dealing with disputes in other ways

If an application made under subsection 333N(3) for the FWC to deal with a dispute does not consist solely of an application for an order under section 333P:

(a) the FWC must deal with the dispute; and

(b) if the parties notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may deal with the dispute by arbitration.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)). See section 333P if the application also includes an application for an order under that section.

Subdivision E — Guidelines

333W Guidelines

(1) The FWC must make written guidelines in relation to the operation of this Division.

(2) Guidelines made under subsection (1) are not a legislative instrument.

98 Subsection 539(2) (after table item 10D)

Insert:

(3) Schedule 1, item 308, page 175 (after line 2), after Division 5, insert:

Division 5A — Amendments made by Part 8 of Schedule 1 to the amending Act

111A Definitions

In this Division:

commencement means the commencement of Part 8 of Schedule 1 to the amending Act.

111B Application of section 149F of the amended Act

(1) Section 149F (right to disconnect term) of the amended Act applies in relation to a modern award that is in operation on or after commencement, whether or not the award was made before commencement.

(2) However, a modern award is not invalid on or after commencement only because it does not include a right to disconnect term.

111C FWC to vary certain modern awards

(1) This clause applies in relation to a modern award if the award:

(a) is made before commencement; and

(b) is to be in operation on commencement.

(2) The FWC must, by the day before commencement, make a determination varying the modern award to include a right to disconnect term.

(3) A determination made under subclause (2) comes into operation on (and takes effect from) commencement.

(4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2-3.

111D Application of amendments to small business employers

The amendments made by Part 8 of Schedule 1 to the amending Act do not apply in relation to an employer that is a small business employer on the day of commencement, or an employee of the employer, for a period of 12 months beginning on that day.

A right to disconnect in Australia is a long time coming and an important advance in our labour law that will make a difference. It'll make a difference to millions of Australian workers and their families. So many people—unions, academics, community groups, workers and some employers—have been negotiating, bargaining and calling for a right to disconnect for workers for decades. Countries around the world—France, Ireland, Italy, Spain and many more—have put a limitation on contact out of hours, and it's time for our country to do the same. Australian workers do an average of seven weeks of unpaid overtime a year. Working hours are out of control, and boundaries around work contact are broken.

Our amendment, the Greens amendment, to create a right to disconnect will rebuild the boundary around workers' personal time and create a safeguard for that time. This amendment means workers may refuse to monitor, read or respond to contact that is unreasonable and outside their paid working hours. It will restore the boundary between work and personal lives. It will reduce unpaid working time and wage theft. This amendment will usher into our workplace relations system some settings that are appropriate in view of the technology of the 21st century. It will provide desperately needed protections against the relentlessness of eternal contact through the digital technologies that we carry in our back pocket.

Technology that once might've promised freedom and a shorter working week has now, for so many workers, created a tether to the workplace in their phones and laptops, extending the length of the working week without being paid. Being contactable at all hours of the day, every day of the week, even on holidays, pollutes our leisure time and our care activities and erodes our personal lives. Workers need some protection, and that's what the right to disconnect will do.

The solution is to create a basic enforceable right, and that's what our amendment deals with. The scale and severity of this problem tells us loud and clear that the solution does not lie at the individual level; we need a right that's enforceable for people. You can't expect a worker to stand up, alone, to their boss when they receive a call at 7 am on Saturday morning when they're living on minimum wage, when they're not getting any allowance for availability and when they're not paid. They are not an executive sitting on their phone talking to New York about a big deal. They're an aged-care worker, they're a retail worker, they're a casual worker. They have no control. They have no backup to say no to their boss. They may never get another shift if they even raise a question about it.

This amendment will give those workers a bit of backup, which is exactly what they need to get some control and boundaries around their working time. They're in no position at present, without any rights in the workplace around this, to actually take some power back for their own mental health, their own physical health and their families. Even workers with secure full-time jobs are often not in a position to say no to a call on the weekend or checking emails during their holidays. Elizabeth Broderick's recent review of workplace culture in EY found that about one-third of their employees were working 51 or more hours a week at least one week out of every four. This competitive culture, which affects so many workplaces now—and it certainly impacts the culture faced by many casual and part-time workers—is intensified by technology that makes workers always available, where the culture is 'never say no'.

That's why we need to legislate limits on contacting workers outside of working hours and empower workers to switch off from monitoring work calls and emails where those demands are unreasonable. That is a critical phrase: what is reasonable here? What is unreasonable? Where you're not being paid to be available, where the contact is repetitive and intrusive or where you have significant family responsibilities then there are very significant boundaries that should be set so that the contact that's made is truly in the event of an emergency: it really does relate to a key task that must be dealt with immediately. What we need is a practical right to turn off your phone or computer outside of your paid hours where you're not paid to do so. People need time to look after themselves, their families and their friends. We need a healthier work culture allowing for genuine leisure and rest.

The Greens' Amendment will create a new right to disconnect, for employees not to be contacted outside their workplace. This right means that an employee may refuse to monitor, read and respond to that contact outside of working hours unless the contact is reasonable. In the same way that the Fair Work Act already judges and uses the term 'reasonableness' in relation to overtime, our amendment lays out some factors to guide the Fair Work Commission about whether the contact or the request to monitor is reasonable.

Now, I know we are going to have plenty of straw men put up in this parliament to try and turn this into a monster right. It's the kind of behaviour that we've seen for 40 years in this parliament whenever there's an attempt to improve the rights of Australian workers. It is false to suggest that workers who are paid at managerial level who have in their job description to be available to talk to New York or who have in their job description to take a call to help manage the media—it's part of their job—are caught by this. They are not caught by this principle. Such contact is in their contract; it's reasonable. It is a dreadful misleading of this parliament and the Australian community to set up those straw men and pretend that this is anything other than a clear, reasonable right which Australian workers deserve. It will be reasonable to contact a worker if they're receiving an allowance to be on call—like many of our parliamentary staff, who receive additional income to compensate for their hours.

The Fair Work Commission, a very experienced body which knows about the adaptability we need in different places and in different occupations, will consider the nature of the employee's role and their level of responsibility. The Fair Work Commission will have the power to tailor the way the right is implemented in modern awards, meaning it can be shaped to fit every industry. The reasonableness test and the role of the Fair Work Commission in implementing the right in awards and agreements allow for flexibility. That is what we need.

A right to disconnect already has a huge amount of support in Australia and worldwide. At least 56 enterprise agreements already have it—Victoria Police, journalists at the West Australian newspaper and in our universities, schools and local government. Many authoritative Australian industrial relations academics, including Associate Professor Chris Wright, Professor David Peetz and Dr Fiona Macdonald, and lots of other academics, have expressed strong support for and put forward clear evidence in support of this right to disconnect, recognising how it will look different in different industries but how fundamental and important this adaptation is to the kind of technology, the kind of workplace and the kinds of families and workers that we have right now.

In evidence provided to the inquiry into the closing loopholes bill, the Australian Federal Police Association argued that this right has worked 'extremely well'—their words—in Victoria and has led to their support for a harmonised approach across the Commonwealth. The Queensland Teachers Union successfully fought to guarantee a right to disconnection for educators in the state. Surveys show Queensland teachers on average work more than 45 hours a week without any overtime paid. No wonder an overwhelming 94 per cent of Queensland teachers voted in favour of an enterprise agreement that gives them the legal right to keep their work and home lives separate—to be able to turn off when they need to when they're not being paid. It is time that we secure this kind of protection, this right, for all workers. Workers and their families can't wait any longer for this urgent reform.

I've spent my working life interviewing, surveying and researching amongst Australian workers, especially Australian working women. They need the right to be able to have a child, to have a family, to look after their aged parents, and so do their partners—to be able to do the combination of care with their work responsibilities. At present, they are often caught, feel guilty and are unable to turn off their phone when they're looking after all of those care responsibilities. We have a new kind of workforce; we have a workforce that's increasingly made up of carers and of women, and our industrial relations legislation must rise to this 21st-century challenge.

It is time we implemented this right. It's good for workers, good for women, good for carers and their families and good for our communities. It's really good for our health and safety in the long run, and very good for our workplaces, our country and our productivity.