If you've ever found yourself replying to a 10pm email, or fielding a phone call from the boss during a Saturday afternoon barbecue, and wondered "should I be getting paid for this?", the answer is … maybe.
The federal government is contemplating a range of new changes to industrial relations laws, including a 'right to disconnect', aimed at protecting workers who feel like work is creeping more and more into their home life.
In short, it will give workers the legal right to ignore those emails, phone calls and text messages that come out of their working hours if they want to.
But those already packing their bags to head off grid for the weekend should hold off – as is often true for workplace law changes, the devil will be in the detail.
While a legal right would set the national standard, it would only become a reality for most employees once their agreement or award is updated either to honour their right to switch off, or else pay them more to stay switched on. That adjustment will be neither automatic nor swift.
The new right is one of a bunch of other changes the government is trying to pass through the Senate this week, including a definition of casual work and minimum standards for 'gig workers' like Uber drivers.
Those last two are 'leftovers' from the government's larger workplace relations bill from last year. It agreed to split that bill, passing changes to labour hire rules and banning engineered stone, but kicking the more contentious elements into 2024.
But the right to disconnect wasn't in that original bill, and in fact wasn't on the government's horizon at all until recently – it began its life as a Greens proposal, and has been tacked by the government following last-minute negotiation.
That negotiation is ongoing, so details are still being ironed out.
But here's what might be in the works.
The right to switch off
For a few years now, concerns have been raised by unions and others that smartphones were quietly forcing workers to stay 'switched on' to work after hours.
Basically, the concern was that there was a growing expectation employees would be available to reply to emails and texts, and field phone calls, outside of their working hours.
Some employees have clauses built in to their enterprise bargaining agreements or individual contracts that they are expected to be available out of hours, and are often paid allowances in lieu of overtime.
The government and crossbench are now drawing up laws that would make such practices the national standard.
The laws would amend the Fair Work Act to give employees the right to 'switch off' — that is, ignore that communication from their work, and not be penalised for it.
There's a recognition that employers often have a totally legitimate reason for contacting their staff at home, like seeking to fill empty shifts.
That's why there will likely be no restriction on employers contacting their staff.
But the change is that employers cannot expect their staff to see those emails, or answer those phone calls.
That is, unless they're paid for it. And here's where things get complicated.
While the new law would allow any individual to take their employer to the Fair Work Commission if they felt their new right was not being respected, that's not how workplace laws filter down to most people.
Instead, most employees will only see a change once the new right has been reflected in their award, enterprise agreement or individual agreement.
This is not automatic – an employee would have to wait until their award is next revisited by the Fair Work Commission, or their current agreement expires.
And even when that happens, the law is unlikely to be highly prescriptive about exactly how the right should be honoured.
While the precise details are still being negotiated, sources involved in negotiations have told the ABC the law would simply set out five 'reasonable grounds' for what appropriate out-of-hours contact arrangement should entail. Awards and agreements would need to comply with those grounds, but there may be significant scope as to how they do so.
Ultimately, the extent to which this reshapes working life will depend on how the commissioners at the Fair Work Commission interpret the new law, since they are the ones responsible for setting awards and approving agreements.
Better gigs for gig workers
This change has been floated for a while, and the government is selling it as a world first if it is able to get the changes in law.
The idea is to introduce minimum standards for gig workers like Uber drivers and food-delivery drivers.
Those standards might include things like minimum rates of pay, or paying superannuation to their workers.
But they likely won't include paying overtime to gig workers, or rostering work hours, which would fundamentally undermine the purpose and flexibility of gig work.
A number of the major gig companies like Uber, Menulog and others are broadly supportive of the idea of creating minimum standards for workers.
But some have raised concerns with the government's intention to leave it entirely to the Fair Work Commission to determine those minimum standards — concerned that the FWC may grant gig workers most of the rights of an ordinary employee.
They argue that would undermine the purpose of gig work, and overlook the flexibility granted to gig workers — that is, that they can work whenever they want, and turn down whatever work they like.
Some crossbenchers share that concern, and are pushing the government towards a compromise, where the government sets out more clearly some of the conditions it wants the FWC to consider.
More opportunities for 'permanent casuals'
This change looks to address the concerns of workers who feel like they are being treated like permanent staff, but kept on the conditions and insecurity of casual work.
It would do that by updating the definition of casual work, to consider not just what is written in an employment contract, but also what that work looks like in practice.
So if a person is working the same hours, on the same days week after week, they would have a new pathway to ask their employer to convert them to a part-time or full-time contract.
They can make that request after working for 12 months in a small business, or six months in a larger business.
Business groups have raised significant concerns, arguing there is currently certainty under the law — that if an employee is employed as a casual, that's exactly what they are.
They argue by changing the definition to consider factors like patterns of work, businesses will be dealing with significant uncertainty in their contracts, and casuals already have clear pathways to permanency.
Some on the crossbench question how significant a problem 'permanent casuals' actually are, arguing that most people employed as casuals are fairly happy to stay that way, given they are paid more than they would be otherwise.
And they are pushing the government to find a middle path, and a definition that considers both how casuals are working, but gives a lot of weight to what is in their contract.
How will this play out?
The government is deep in negotiations with the crossbench, as well as talking with business groups about what these laws will finally look like.
The Coalition is broadly opposed to the laws, meaning the government will need the support of the Greens and two crossbenchers to get its bill through.
Those talks seem to be going pretty well, and it seems likely the bill will make its way through the Senate — but more tweaks are likely along the way.
That could happen as soon as this week, or could take longer if negotiations drag out.
Business groups are also pretty firmly opposed to the laws, but the government says it is happy to hear their concerns and make changes if it can be convinced change is necessary.
And these changes come on top of a bill that went through parliament late last year.
That first 'Closing Loopholes' bill dealt with matters like more support for first responders experiencing post-traumatic stress disorder, and workers experiencing domestic violence.
There were also changes to protections around redundancy payments, and expanding the remit of asbestos-related agencies to deal with silicosis issues.
Wage theft and industrial manslaughter were also made criminal offences.
But the primary change dealt with labour hire workers — ensuring they would be given the same pay and conditions as ordinary full-time employees, to avoid companies trying undercut their own enterprise agreements.