The way we work and how we work has changed significantly since Covid with many employees virtually connected to the workplace 24/7. Australia (and many other nations) have implemented legislative restrictions around contacting employees outside of normal working hours.  Employers in New Zealand should also be considering how they manage contact outside of working hours both from an employment law and a health and safety perspective.

This article considers the possible implications of similar legislation in New Zealand on employees and employers. However, it is also important to remember that there are already laws governing availability and health and safety that apply to contact with employees outside of work hours.

The Australian legislative framework

The Australian Government has passed legislation enabling eligible employees the right to refuse employer or third party contact outside of working hours unless that refusal is unreasonable.

In Australia this right will start for non-small business employers on 26 August 2024 and for small business employers on 26 August 2025.

Where disputes arise over contact outside of work hours, in the first instance they should be discussed at the workplace level. However, failing this, employees will be able to take the dispute to the Fair Work Commission. Employers could be fined up to $18,000 if an employee raises a concern about continual contact outside of work hours.

‘Reasonable right to refuse contact’

Whether it will be reasonable for an employee in Australia to refuse contact will include consideration of the following factors:

• The reason for the contact (for example, an emergency with direct consequences for the employee may be more reasonable);
• The method of contact and the disruption it causes (for example, an email is less disruptive than a text or phone call, or a call ten minutes after the finish of work is less disruptive than a call late at night);
• Whether the employee is compensated for being available / ‘on call’ (for example, if the employee’s salary reflects availability to be ‘on call’ or if the employee receives additional leave for being ‘on call’ this may be more reasonable);
• The nature of the employee’s role and level of responsibility (for example, it may be more reasonable to contact a manager than an entry-level employee); and
• The employee’s personal circumstances including family or caring responsibilities (for example, it may be less reasonable to contact an employee who is the primary caregiver of young children).

As well as the above considerations, any other relevant factors could also be considered in the equation.

Overseas perspectives

Australia’s new legislation is not unique, many other countries have adopted similar regulations or legislation around the right to disconnect. These include France, Belgium, Italy, Argentina, Chile, Luxembourg, Mexico, Philippines, Russia, Slovakia, Spain, Ontario, and Ireland.

France was one of the first countries to adopt such a framework. In 2016 France made it mandatory for companies with more than 50 employees to establish parameters for after hour communications. There, the Court has made a ruling to order a company to compensate an employee who was required to constantly keep their work phone on. Similar rulings may well be made in other jurisdictions (including New Zealand) in the future.

Implications for New Zealand

Whilst there is currently no legislation for workers to have a right to disconnect it may not be long before similar legislation is introduced into New Zealand. Overseas, legislation has been introduced amidst the backdrop of increased remote/flexible working and 24/7 employee access through social media and mobile technology use. This poses risks to employees of stress, burnout, exhaustion and generally decreased mental well-being. These risks are just as applicable to New Zealand employees as they are to international employees.

Any legislation would have impacts on the design and structure of work. Around 20% of the New Zealand workforce say they work after their usual hours of work. Such legislation would force work closer to the ‘9 to 5’ model where work- and work-related queries need to be addressed within the ordinary working day.

In Australia some businesses have raised concerns that ‘disconnecting’ could hinder productivity and collaboration, particularly in fast-paced or client-facing environments. Workplaces will need to implement strategies to manage and mitigate these concerns. This will be particularly important for industries with on call and client facing demands such as consultancy and law firms, real estate agents and service providers such as plumbers, electricians, and other trades people.

One of the goals of the Australian legislation was to prevent employees completing unpaid overtime. In New Zealand this would force employers to consider whether it was essential for employees to be available outside of work and if so to compensate these employees appropriately. In essence, forcing employers to pay employees for availability and overtime work.

New Zealand legal obligations

Employers in New Zealand owe a health and safety obligation to workers to protect their wellbeing under the Health and Safety at Work Act 2015 (HASWA).  This may not equate to a ‘right to disconnect’ in the same way as the Australian legislation but employers still have to consider the health and safety impacts on employees of being connected to work via their phones and remote access to the workplace and manage those risks.

Employers in New Zealand have a duty to their workers to do everything reasonably practicable to eliminate or minimise health and safety risks imposed by psychosocial hazards. Psychosocial hazards are those which pose a risk to mental and psychological well-being. Contact outside of work, particularly if it is frequent, demanding, and disruptive may be a psychosocial hazard.

Such communications may cause harm such as stress, anxiety and burnout which pose a risk of more serious harm such as depression, mental breakdowns, and suicide. Such risks are enhanced if workers are not compensated and supported if they are required to be available/’on call’.

Employers have a duty to minimise the risks caused by outside work contact by considering the necessity and frequency of contact and any potential compensation. The risk of prosecution here is currently low (unlike in Australia), but structuring work and contact expectations is a tangible step good employers should look to take.

In addition to health and safety obligations, the Employment Relations Act 2000 requires to pay employees if they require them to be available outside of their contracted hours and they must ensure that they pay employees at least the minimum wage for work they do. Compensation for availability can be included in a salary but must be paid on top of a wage. Further, the Courts have previously held that times where an employee is expected to be at the employer’s disposal can constitute work for the purposes of the minimum wage (when considering care workers who did sleepover shifts at care facilities). Employers should be aware of these obligations when considering to what extent they require employees to remain connected outside of work hours.

What can you do?

Employers can be proactive in managing risks from outside work contact by consulting with their employees, considering what outside of work contact is needed and expected and how to minimise the health and safety risks associated with connectivity outside of working hours. Employers can have a dedicated policy in relation to connectivity and/or address the issue within the terms of their individual employment agreements or relevant policies regarding availability and health and safety.

If you have questions about this article or would like a confidential chat about your responsibilities as an employer, please get in touch with Anne Wilson or Grant Nicholson.

Article written by Law Clerk, Elizabeth Wray.‍