For everyone The Law and You: the great disconnect
Teachers, like all knowledge workers, are at the mercy of employers and third parties who may wish to contact them at any hour of the day or night. The increasingly portable nature of computers and other electronic devices means that employees are always in reach. Professionals can feel obliged to keep an eye on such messages and may be tempted to respond out of hours.
From 26 August 2024, members will have a right to disconnect under the Fair Work Act 2009. Under the Act, members 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”. This right will extend to contact or attempted contact by third parties such as parents and students.
In a Federal Court case brought by the AEU in 2014 – now known in the legal community as the ‘Laptops case’ – the AEU challenged the legality of the Department of Education’s Notebooks for Teachers and Principals Program (NTTP). Under the NTTP, teachers and principals were required to have money deducted from their wages to pay for their work laptops. The case set an important precedent regarding unlawful deductions from wages, but also explored the way in which laptops were being used by AEU members.
In his opening submissions, senior counsel for the AEU Richard Niall QC (now a Victorian Court of Appeal judge) explained to the court that laptops are an essential work tool for teaching. The purpose of the NTTP, he said:
…is to provide a computer to teaching staff so that they can do their job and that the department gets the benefit of the efficiencies of the technology, including the burden on teachers of effectively extending or further extending work into the private or home domain.
As an instructing solicitor in the case, one of the more illuminating aspects was the evidence given by AEU members as to the extensive use of laptops by principals and teachers after hours.
On 6 November 2015, the Federal Court of Australia delivered its landmark judgement in favour of the AEU and its members. In his conclusion, Justice Bromberg found that many teachers worked 50 to 55 hours a week and that five to 10 of those hours were worked from home. The upshot was that, not only were teachers and principals being required to pay for their laptops, but they were also being expected to use them to work out of hours!
Employers and third parties may come to understand that educators’ personal time is their own.
Since the hearing of the Laptops case, social media has become even more pervasive and there are ever greater opportunities for members to be contacted out of hours. For teachers, this can involve not only their employer, but also members of the wider TAFE/school/kinder community – chiefly, parents/carers and students who feel entitled to contact AEU members at any time of the night or day.
Members frequently put students’ interests ahead of their own and often feel compelled to respond to or at least monitor their emails. However, for obvious reasons, members need to be able to switch off.
The Fair Work Act provides some guidance as to what makes a refusal to respond to any work-related contact “unreasonable”. Factors include the reason for the contact; the level of disruption; compensation for out-of-hours contact; the employee’s role and responsibilities; and an employee’s personal circumstances. The Fair Work Commission (FWC) is currently preparing further guidance for employees and employers.
Together with this new right to disconnect, there will be an ability to raise disputes about out-of-hours contact and to take those disputes to the FWC. Further, asserting the right to disconnect is the exercise of a workplace right. This means that, under separate provisions of the Fair Work Act, it will be unlawful for an employer to victimise an employee for, for example, refusing to monitor their email account after hours.
Hopefully, the right to disconnect will also have a normative effect. Employers and third parties may come to understand that there are limits to their ability to contact employees, and that educators’ personal time is their own. In addition, these new rights and protections may embolden employees to switch off – they can put aside their employer-provided laptops and enjoy their time away from work.
