Public servants will have a right to disconnect, unless their contract explicitly says otherwise, senate estimates has heard.
Gallagher faced questions at senate estimates about how the government’s industrial relations bill will affect public servants alongside members of the Australian Public Service Commission (APSC).
Senator Jane Hume expressed particular concerns about the right to disconnect, and the effects this would have on the work of public servants and political staffers.
This new right gives workers the right to refuse contact from their employers during hours they are not being paid. It will be legally operative in the public service in about six months.
First assistant commissioner Jo Talbot said APSC was considering how the new rules could be implemented across the service.
“The APSC will work in particular with DEWR to develop implementation guidance to support commonwealth agencies as a model employer,” she said.
“Any [other] questions on amendments to the Fair Work Act should be addressed by DEWR.”
The question of how it will apply to staffers is likely front of mind for many politicians because of recent high-profile workplace disputes.
Monique Ryan staffer Sally Rugg claimed she had been forced to work unreasonable hours and perform duties beyond the job she had been hired for. The case was eventually settled.
In 2022, the Fair Work Commission vindicated Jacqui Lambie’s decision to sack a staffer who had politically undermined her.
As debate over the amendment raged on last week, Lambie told the chamber she didn’t want to be dragged before the commission again.
She said the government was creating an impossible environment for independents to operate in.
“You take two advisers off the crossbench and the rest are now working more hours. If my guys took me to Fair Work, I reckon they could do me over, to be honest with you,” she said.
“How many hours for advisers are fair overtime hours per week? Why do you tell me that so we can all stay aligned so I don’t end up at Fair Work again?”
But the answer to this question has been obvious to people familiar with the Fair Work Act since debate around the right to disconnect began.
Many provisions in the act are subject to a “reasonableness test“, which gives the Fair Work Commission discretion to dismiss claims against actions seen as reasonable.
In practice, it is unlikely the Fair Work Commission will make adverse findings against an employer acting in good faith.
Additional protections were added through negotiations, reinforcing the Fair Work Commission’s ability to dismiss “vexatious claims”.
Importantly, the legislated right to disconnect excludes people with explicit contractual obligations to be on call, or work after hours with the understanding individual workplaces will make provision for this if it is necessary.
This means some public servants — like media advisers — who receive an allowance for working outside normal business hours will not be able to enforce their right to disconnect.
Gallagher said while MoPS don’t have a right to disconnect, it was incumbent on politicians to reasonably manage their workloads.
“It’s not a free for all — I try to be conscious of that when sending emails and things, not at 1am or 2am in the morning, or referencing ‘not urgent, no need to reply’,” she said.
“Just because you’re compensated, doesn’t mean you’re there 24/7.
“I think people who are in precarious low-paid work, and where it is unreasonable is the real test.”
The CPSU has expressed concerns about this, saying ministerial staff should have the same right to disconnect as other public servants.
MoPs staff are currently negotiating a pay claim with the union, of 20% over three years, partly on the grounds they are required to work unreasonable hours.
CPSU national secretary Melissa Donnelly said the “unrelenting pressure” staffers were under was causing burnout at an alarming rate.
“Being an employee of a member of parliament should be a sustainable career, but for many right now that’s not the case,” she said.
“For too long, parliamentary workplaces have had a culture of long and irregular working hours accompanied by an expectation to always be available and ready to do whatever work needs to be done.
“Whether you’re in an electorate office or a ministerial office, you should be able to switch off from work.”
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