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The simple mistake that could land your boss in trouble

·5-min read
Business man meeting virtual team on video conference call using computer. (Source: Getty)
In some countries it is illegal for your boss to call or text you after your work hours. (Source: Getty)

Bosses beware. In some countries it is illegal to contact employees outside the normal working hours and you could land yourself in some trouble if you do.

The COVID-19 pandemic forced companies worldwide to embrace remote working in order to stay afloat, but this new arrangement ironically blurred lines between working and personal hours, leading to the 'burnout epidemic'.

Why there is a need for stricter regulation

In a scramble to survive a COVID-ridden environment, some companies across the world are demonstrating a tendency to micromanage and overburden employees, pushing them to work beyond their means all while providing them with the necessary technology to work with.

Employees in their turn are succumbing to ‘availability creep’, a concept where they feel obliged to be available all the time to respond to work requests.

To ensure a healthier work-life balance for remote workers and to prevent companies from overworking employees, some countries have effected stricter rules and regulations.

The latest to join this bandwagon is Portugal which has ruled "employers could face penalties for contacting workers outside of office hours". 

A woman sleeping in front of a laptop. (Source: Getty)
The remote working model has led to burn out and thrown work-life balance out of order. (Source: Getty)

Under the new rules approved by Portugal to address work-from-home grievances, the employer could face fines for contacting workers beyond their normal working hours. 

However, a proposal to include the 'right to disconnect' was rejected by the Portuguese parliament.

Compamies will also have to bear certain expenses incurred due to remote working, such as higher internet and electricity bills. Moreover, employers are not authorised to monitor their employees while they work remotely.

But these amendments are not without limitation. They do not apply to companies with fewer than 10 employees.

While the pandemic and the subsequent remote working arrangement accelerated the need for better regulation of working hours for employees, this isn't a phenomena entirely arising in the face of it.

France was the first to set stricter labour laws

France was the pioneer in establishing the 'right to disconnect', which is a proposed human right that upholds the ability of employees to disconnect from work and not to engage in work-related electronic communications such as emails or messages during non-work hours.

This bill was proposed in France as early as October 2001, seeking that "the employee is under no obligation either to accept working at home or to bring home their files and digital tools". 

In 2004, the French Supreme Court affirmed this decision and ruled, "if an employee was not reachable on his cell phone outside working hours it cannot be considered as misconduct."

On 8 August, 2016, a new law, called El Khomri law was passed in France and was brought into effect on 1 January, 2017. According to the law, the onus of negotiating and determining the extent of the 'right to disconnect' falls on the employers and the unions in companies having at least 50 employees.

The ruling should accommodate reasonable regulation regarding the use of new technologies while bearing cognisance to not adversely affect rest times, holidays and personal lives of the employees.

However, the scope of this law is skewed and relative to a company's predetermined rules. It is not an absolute law and it is not the easiest to implement in certain professional environments. 

The best-case scenario that the law facilitates is that it is employee friendly in the event that the employer fails to implement it. This means, if the boss contacts the employee outside work hours and the employee is annoyed, then the odds are in the latter's favour.

Other countries with laws equivalent to the 'right to disconnect' are Germany, Spain, Slovakia, Italy and Philippines.

Workers sit at a long desk, using computers. (Source: Getty)
Australia has strict rules in place to protect remote emlpoyees' interests. (Source: Getty)

Do Australian employees have the right to disconnect?

Technology is a double-edged sword. At the same time as it has simplified and enriched our way of life in unexpected ways, it has also surreptitiously stretched working hours far beyond the hours that employees are paid for.

In 2016, an OECD (Organisation for Economic Co-operation and Development) study revealed that work-life balance in Australia ranked below the average across developed countries.

The study found that, on average, Australian full-time employees reported having 30 minutes less time to spend on 'leisure and personal care' in comparison to other OECD countries.

Following France's implementation of the 'right to disconnect', wherein employees can ignore emails from bosses and colleagues outside normal hours, Australian politicians have called for stringent protection against overwork in the digital age, especially post COVID.

Unfortunately there is no equivalent 'right to disconnect' in Australian employment law. 

Barring the recent win by Victoria Police to introduce a ‘right to disconnect’ clause into its new enterprise agreement in an attempt to help employees mentally detach from work and avoid ‘availability creep’, there isn't much to write home about where this law is concerned in other fields of employment.

But this does not mean that you don’t have ample employment rights. Australia has several measures in place to protect employees, depending on the enterprise agreement that governs the employer-employee relationship.

If your work-life balance is taking a beating at the hands of your boss or colleagues reaching out to you on your phone beyond your work hours, check with your employer to know your rights and to know if you stand to get paid overtime for being available.

If you’re an entrepreneur, make sure your company policy is clear about when you can contact employees outside of work.

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