The right to disconnect – Does New Zealand law protect unreasonable after hours contact?

The combination of technology and flexible working arrangements is enabling connection 24/7, leading to questions about the reasonableness of employer contact outside of an employee’s ordinary working hours. Australia has introduced new legislation enabling employees to refuse employer contact outside working hours. This has sparked a discussion about whether a similar law is necessary in New Zealand, or, whether sufficient protections are already in place to manage working hours from a health and safety, and employment law perspective. 

Australia’s law – the ‘right to disconnect’

Last month, Australia passed legislation enabling eligible employees the right to refuse employer or third party contact outside of working hours, unless that refusal is unreasonable.[1] This includes an employee’s ability to ignore after hours calls, emails and/or text messages. Further, it restricts retributory conduct by an employer when an employee has refused unreasonable contact.

Any disputes over contact outside working hours requires discussion at the workplace level, then if unresolved, a dispute can be taken to the Fair Work Commission. Successful claims against employer’s continued contact outside working hours could result in fines of up to $18,000.

How will a reasonable right to refuse contact be determined?

In Australia, the following factors (which are not an exclusive list) may be taken into account in considering whether it will be reasonable for an employee to refuse contact:

• The reason for the contact. For example, an emergency with direct consequences for the employee will likely be reasonable;
• The method of contact and the disruption it causes. For example, a late night phone call may be more disruption than an email close to the end of the working day and therefore less reasonable;
• Whether the employee is provided additional compensation for being available or on call;
• The nature of the employee’s role and level of responsibility, i.e. a senior employee with managerial responsibilities may be more reasonably contacted;
• The employee’s personal circumstances including family or caring responsibilities.

Is the right to disconnect available in other parts of the world?

Australia’s new law is not unique. Many other countries have 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.

What are the implications for New Zealand employers on the international laws around the right to refuse employer contact?

New Zealand is not unique in reports of increased worker stress, burnout and wellbeing concerns, particularly post the height of the Covid-19 pandemic. However, in New Zealand, there is no explicit law providing employees (or workers generally) with a right to disconnect. 

The international trend towards explicit legislative or regulatory protection raises the question of whether New Zealand is appropriately addressing concerns around an increase in remote/flexible working arrangements, and the creep in employee working hours through mobile technology use. 

The Employers and Manufacturers Association has opposed legislation addressing the ‘right to disconnect’ from being introduced in New Zealand, on the basis that existing laws already appropriately address the risks and employees may simply ask employers to not be contacted after a designated time. The EMA also notes that persistent unreasonable contact can be addressed as workplace bullying or harassment. 

When introducing new laws, an assessment of any impact on the design and structure of work will be undertaken, and any unintended consequences. This would likely include whether legislation would detrimentally impact the ~20% of the New Zealand workforce which report that they work after their usual hours of work.[2] Employers have raised concerns around productivity and collaboration in response to these law changes. This is particularly the case for those in fast-paced or client-facing environments, those dealing in international jurisdictions, and those who provide services which are often irregular in nature, such as trades and real estate. 

Alongside protecting an employee’s wellbeing through the ability to disconnect from work and their availability to work, laws around the right to disconnect are designed to prevent employees from performing work which is unpaid.  

There are broader implications that come from the creep of work into private lives of workers. New Zealand law does little to protect workers from privacy invasions and employer demands. For example, New Zealand has only generic privacy principles, and these allow employers the right to collect personal information about employees where this is necessary for a lawful purpose connected with the worker's functions or activities, i.e. an employee may not know or explicitly consent to their data being collected, why, or who may receive it. There is not an explicit ban in New Zealand of collecting data on employees while they are not working. Accordingly, an employer may have access to technology that enables not only contact with an employee outside work, but also to track and record what they do in their time off.

Do New Zealand laws protect employees from unreasonable employer contact outside or working hours?

In New Zealand, the Health and Safety at Work Act places an obligation on employers to protect workers' wellbeing and to take all reasonably practicable steps to eliminate or minimise health and safety risks. Accordingly, while not explicitly referencing a ‘right to disconnect’ which is now provided for in Australian law, New Zealand employers have an obligation to consider the health and safety impacts on employees of being connected to work outside their ordinary working hours, and to manage those risks.

Employer contact outside of work that is frequent, demanding and/or disruptive may be a psychological hazard, which may pose a risk to mental and psychological well-being and therefore employers have a duty to eliminate or minimise this. 

Employers should be taking steps to structure work and contact expectations to minimise these risks. Practical tools are available to employers, for example, utilising restrictions for systems access or emails being sent/received during certain hours.

Alongside health and safety obligations, the Employment Relations Act requires that employers pay employees if they require availability outside their contracted hours. Further, if they require work outside their agreed hours, employees must be paid at least the minimum wage for any work performed.[3]

While an employee may be compensated for availability by explicit inclusion within an employee’s salary, this must be paid on top of a wage.

New Zealand courts have previously considered the situation of care workers undertaking sleepover shifts at care facilities, and held that during these times where an employee is expected to be available to the employer, this may constitute work, requiring payment of at least the minimum wage.

Accordingly, when structuring work and considering whether an employee may be required to remain connected outside their ordinary working hours, employers need to be ensuring that they meet their statutory obligations for worker health and safety, and to pay reasonable compensation.

What should employers do?

Regardless of whether New Zealand introduces a new law addressing employer contact with employees out of working hours, employers should be proactively managing risks arising from ‘work creep’. This includes:

• Considering what outside of work contact is needed/expected.
• Considering how to minimise health and safety risks associated with connection outside working hours.
• Where required, ensuring employment agreements have legally valid availability clauses, which clearly provide reasonable compensation.
• Providing clear guidance around employer/employee expectations through employment agreements and/or workplace policies. For example – guidelines around after-hours work including limiting after hours emails, text messages and phone calls.
• Fostering a workplace culture which sets healthy boundaries including respecting employee personal time.
• Regularly reviewing employee working hours and work related contact that may be occurring outside of working hours together with the effectiveness of systems to manage the health and safety risks arising.
• Regular review of annual leave to ensure employees are having reasonable opportunities to rest, recharge, pursue interests and time with friends and family.
• Ensuring all working hours are reasonably compensated.

For further advice on managing employee wellbeing, health and safety, availability and fair pay, DTI Lawyers specialist employment lawyers are available by phone on 07 282 0174 or email [email protected].