Should NZ implement a "right to disconnect" law?

Published 6 September 2024 | 2 min read

It's 7:00pm on a Wednesday, and you've just sat down to dinner with your family or out catching up with a friend when your phone buzzes. It's a work message. Should you respond? Is it urgent? Will your choice affect how your boss sees you tomorrow morning? These situations are all too common in today's hyper-connected world. For many New Zealand employees, the lines between work and personal life have become increasingly blurred. This begs the question: Should employees have the right to "disconnect" after hours without fear of repercussions?

Across the Tasman, Australia has recently introduced a new "right to disconnect" law, giving workers the legal right to ignore work calls, emails, and messages outside of their regular working hours, without fear of punishment. This development has sparked discussions in New Zealand about whether a similar law should be enacted here. Could a "right to disconnect" be the answer to improving work-life balance, or would it introduce more challenges than it solves?

Grey areas of 'reasonable' contact

The idea of a "right to disconnect" sounds straightforward in theory, but the reality is filled with grey areas. How do we define "unreasonable contact"? Should an employee have the right to ignore a late-night message, even if it’s about a work-related emergency? These are just some of the questions that arise when considering such a law.

Australia's new legislation is a step towards providing employees with a clear boundary between work and personal time. However, it doesn't prevent employers from reaching out; it only protects employees from retaliation if they choose not to respond, unless refusing is deemed unreasonable. The term "unreasonable" remains ambiguous, leading to confusion and varying interpretations.

For instance, what constitutes a "work-related emergency"? Is it something that affects the immediate safety of employees or clients, or does it also include an urgent business decision that could impact the company’s bottom line? The law suggests that context matters, and factors such as the employee's role, the nature of the business, and even personal circumstances like caregiving responsibilities should be considered. But without clear definitions, enforcement becomes complex and potentially contentious.

What we can learn from Australia

Australia’s approach is a bold attempt to address the issue, but its implementation is still in its early days. Under the new rules, employees can refuse to monitor, read, or respond to any employer contact outside of their normal working hours, unless such refusal is deemed unreasonable. Employers who violate this could face significant fines.

While this sounds promising, the success of the law hinges on how well it is enforced and understood. In Australia, the term "reasonable contact" is still being debated, and businesses are grappling with what it means in practical terms. This ambiguity could lead to inconsistent applications of the law, as individual managers and companies interpret it differently.

A quote from Brent Ferguson of the Australian Industry Group captures this uncertainty well: "What’s reasonable or unreasonable will depend on individual circumstances, and that uncertainty is part of what the industry is grappling with."

Pros and cons

There are clear benefits to implementing a similar law in New Zealand:

• Combats employee burnout: A legal right to disconnect could help reduce overwork and improve mental health by clearly defining when employees can switch off from work-related communications.
• Framework for managing boundaries: Provides a structured way for managers and HR to set clear after-hours expectations, reducing conflicts over what constitutes "reasonable" contact.
• Legal clarity: Helps protect employees from potential retaliation if they choose not to engage in work-related contact outside their contracted hours, fostering a fairer work environment.
• Aligns with global standards: Mirrors similar laws in countries like France, Ireland, and Canada, potentially enhancing New Zealand’s reputation as a progressive workplace leader.

But, there are also clear negatives:

• Ambiguity in definition: The term "reasonable contact" remains vague and could lead to varying interpretations, making it difficult to enforce consistently.
• Overlap with existing protections: New Zealand's current laws, like the Health and Safety at Work Act 2015, already offer some protections against excessive out-of-hours work, possibly making new legislation redundant.
• Challenges in enforcement: Practical difficulties in monitoring and policing such a law could render it ineffective, as seen in countries where similar rules are often ignored by businesses.
• Impact on business flexibility: Could limit necessary flexibility for businesses to respond to emergencies or urgent situations, potentially hindering operations.

Could it actually work in New Zealand?

As New Zealand considers whether to follow Australia's lead, it’s clear that there is no one-size-fits-all solution. For businesses, the goal should be to strike a balance between respecting employees' personal time and maintaining necessary flexibility for operations. Clear communication, transparent policies, and a culture of mutual respect are key.

While a legal "right to disconnect" might offer some benefits, the existing laws already provide protections that, if properly enforced, could achieve similar outcomes. Instead of rushing to enact a new law, New Zealand businesses could focus on fostering open discussions about work-life balance, setting realistic expectations, and ensuring that employees feel empowered to set boundaries.

In conclusion, while there is much to learn from Australia’s new approach, we should weigh the potential benefits against the complexities and challenges of implementing such a law.