The rights to disconnect is great — but workers need the power to enforce it

Parliament is set to pass Labor’s third tranche of industrial relations reforms on Monday. The Senate approved the legislation on Friday, but it must be sent back to the House of Representatives to be ratified. Following copious amendments by the Greens and Senate crossbench, the package now includes a right for casual workers to convert to permanent roles, a “right to disconnect” from your boss’ calls and emails, and more.

Business lobby groups are, of course, bleating about the imposition of Soviet communism upon salt-of-the-earth suburban fish and chip shop owners and their petty bourgeois brethren. I doubt they believe their own hysterical hyperventilating — it’s merely a tactic to narrow the Overton window.

In reality, this bill’s headline items, like many before them, are a much-needed step forward — but alone, they won’t end Australia’s culture of overwork, the exploitation of casuals, nor any of the ills of modern working life that motivated it. They will likely join a litany of technocratic micro-fixes with which the nation’s war-weary union officials will try, too often in vain, to beat back the tide of stagnant pay and conditions, while longing for something more structurally empowering.

For instance, let’s unpack the “right to disconnect”. Workers really should be emboldened to switch off. The Centre for Future Work found that in 2022, 71% of surveyed employees worked outside their scheduled hours, largely to meet employer expectations. Most of this overtime was unpaid. Giving employees greater confidence to ignore work messages in “off time” won’t just help overburdened workers with external responsibilities — it could also benefit employers, by clarifying the limits to their duty of care. And it’s already operating in other jurisdictions.

The potential problem is enforcement. An employee can ignore their boss’ after-hours emails, but if their boss refuses to stop contacting them — “It’s not my fault you need to care for your mother who has Alzheimer’s, Brenda” — or punishes them for ignoring their calls, the employee must go to the Fair Work Commission to request a “stop order”.

Realistically, how many workers will take their boss to Fair Work? Probably not many, given the current power imbalance. Perhaps only those who are members of their union — now just 12.5% of workers (down from 41% in 1992).

There is a similar dynamic at play with the new casual conversion rights. Again the case for action is clear — of Australia’s 2.5 million casual workers, an estimated 850,000 have regular work arrangements, according to Workplace Relations Minister Tony Burke. They’re effectively permanent, ongoing employees in all but employment rights.

Under the new laws, workers will be able to apply for conversion after six months of regular working arrangements (or 12 months for small businesses). However, employers will be able to refuse the request on “fair and reasonable operational grounds” — and thanks to amendments from Senator David Pocock, employers won’t need to provide detailed reasoning. To get this overturned, workers will have to… you guessed it, appeal to the Fair Work Commission.

Again, how many casuals will realistically fight their boss’ flat no? And how many bosses will routinely issue blanket rejections, knowing for employees, going to Fair Work feels risky?

Australian industrial relations is plagued by laws that end with, in effect, “if your boss says no, take them to Fair Work”. Such rules were usually written by lawyers or former lawyers, for whom going to an industrial umpire is just another Tuesday afternoon. But for most vulnerable employees, it simply feels too daunting — unless their union has their back.

That’s not to say these new laws are useless, or that the Fair Work Commission has no role to play in industrial disputes. But if they are to have their desired effect, we also need wider efforts to give workers the feeling of strength in numbers; that by enforcing their rights, they aren’t going out on a limb.

On this front, Burke’s first tranche of reforms were more important than his last two. Enterprise bargaining isolates workers from their colleagues across the industry and stifles union organising. By providing the first cautious moves towards industry bargaining in some sectors, Burke has strengthened their hand in negotiations. And elements of the current bill help, including giving unions an advantage if disputes become intractable.

The maintenance of full employment is another area of tentative promise. Job numbers are historically high right now, giving workers a sense of opportunity from which to assert their agency. Not going to give me that conversion to permanent hours? Well I’ll go take a job at your competitor!

But there is more to do. Tony Burke is on a roll with his industrial agenda, and if he broaches a fourth tranche of reforms, there are complimentary steps he could take to put a gentle finger on workers’ side of the scales.

For instance, he could allow unions to charge bargaining fees to non-members who benefit from deals they negotiate. That would promote active union membership and penalising “free riding”. While someone who isn’t a union member can currently get the same pay rise as their unionised colleague, both are weaker when their boss knows they’re disorganised.

The ‘right to disconnect’ is welcome. But workers don’t just need rights, they need power. What good are rights if your boss can just laugh them off, knowing you won’t or can’t fight back?

Would you feel comfortable taking your boss to the Fair Work Commission? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.