How Greens senator Barbara Pocock got independent David Pocock on board

Around dinner time last Tuesday, Barbara Pocock retreated into her parliamentary office in Canberra for a critical meeting with her fellow Senate colleague, and kingmaker, David Pocock.

The mood was tense.

This phone call, which would last only 20 minutes, would either make or break her long-running push to protect employees from being penalised for ignoring work messages after-hours.

Hundreds of thousands of workers across 65 Australian employers, including the nation’s largest banks and the public sector, had already won right-to-disconnect provisions in their enterprise agreements, but the Greens wanted to extend the benefit to all workers across the nation.

ANZ has enshrined the importance of maintaining work-life balance by employees being able to switch off from work, while the Commonwealth Bank committed in its enterprise agreement to develop guidelines that address contacting employees outside normal work hours.

The impact of the industrial reforms are still too early to tell, and even CBA chief executive Matt Comyn has conceded the bank is still navigating the rights of employees and providing seamless service for customers.

“When we think through the overall impact on the business, we’re also conscious of – we’re a 24/7 business,” Comyn said this week.

“Customers certainly expect our services, or many of them are available, at all times, and we expect to be able to think through some of the reasonableness of, and requirements on, different roles. So by way of example, if you’re a customer service specialist that’s working in our branch network, that’d be a very different expectation to say if you’re a cybersecurity expert, or if you’re a senior executive.”

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The Finance Sector Union has also secured the win for its members at NAB, Cbus Super, Bank of Queensland, AustralianSuper, Aware Super, Zurich Insurance Group and the Teachers Mutual Bank Limited in recent years as digital technology and the COVID-19 pandemic extended the working day.

“Putting clear boundaries in place recognises the importance of work-life balance and the need to protect the health and wellbeing of workers,” said the union’s national secretary, Julia Angrisano.

In its enterprise agreement, ANZ stipulates both managers and employees have a role to play in seeking to foster work-life balance.

“ANZ’s general expectation … is that employees covered by this agreement are not obliged to remain connected to the workplace outside their normal working hours,” the EBA states. “There will be situations when it is necessary for employees to be contacted and or to work outside of their normal hours.”

The bank has carve-outs for after-hours contact if it considers the work that needs to be performed to be time-critical or an emergency; the nature of the employee’s position requires work at irregular hours; contacting staff about rosters; and if the staff member is being compensated for that work.

‘The sky will not fall’

Independent senator David Pocock had only a few days to digest the Greens’ amendments to the government’s Closing Loopholes legislation seeking to give workers the right to disconnect before it was introduced to the Senate last Wednesday. The amendments were voted on a day later.

He wasn’t entirely comfortable with what Greens senator Barbara Pocock (they’re not related) had proposed, nor with what he believed was the minor party’s lack of transparency for refusing to release the draft amendment in advance – but if they wanted his support, he was requesting three changes.

Employers shouldn’t be prohibited from contacting staff, he said, but employees should be given the right to not respond to calls and emails. He also wanted safeguards against vexatious complaints.

Barbara Pocock agreed.

For outsiders, the significant changes to industrial relations laws had come left-field and have since dominated the national conversation, even making international headlines. But, with her staff, Barbara Pocock had been working with Industrial Relations Minister Tony Burke’s office for more than six months, drafting and scrapping about 40 different versions of her amendment, according to a source close to the Greens senator.

After negotiating with Burke over summer the introduction of a right to disconnect in return for voting in favour of the government’s reforms to strengthen the rights of casuals and workers in the gig economy, and then securing the support of independent senator Lidia Thorpe, the final vote she needed to lock in hours before the bill was introduced to the Senate was that of David Pocock.

Barbara Pocock managed to clinch his backing at the 11th hour for Australia to join the likes of France, Spain and Canada to protect workers from the increased blurring of lines between work and personal life.

“Let’s be clear: the sky will not fall,” Barbara Pocock said this week. “The fact that we carry our workplace around in our pocket these days means that we have become available to be contacted any time of the day or night, and we need to protect those workers who are regularly suffering the burden of intrusive contact from work during their time off without being paid for it.”

The haste at which the right to disconnect was legislated has alarmed business groups, the federal opposition and even David Pocock, who told the Senate he was concerned the draft amendment hadn’t been publicly released for consultation or subject to the scrutiny of a parliamentary committee.

“I believe additional safeguards are warranted to guard against these provisions being used vexatiously,” he said. “I also believe additional resourcing is needed to develop guidance, particularly for small businesses, on this new right and its application.”

Burke had to introduce separate legislation to the House of Representatives this week to fix a quirk that had effectively introduced criminal penalties for employers who breach Fair Work orders – an error that could have been avoided, critics argue, if the amendment had been released earlier to be digested.

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Opposition Leader Peter Dutton has vowed to roll back the reform, standing with business groups that say the laws are unnecessarily prohibitive. Wesfarmers chief executive Rob Scott told investors on Thursday the legislation added additional complexity to an already very complex industrial relations system.

“This should be dealt in a common-sense way, and it should be dealt at an enterprise level,” Australian Chamber of Commerce and Industry chief executive Andrew McKellar says.

“If you’re a large corporate, it’s something you can write into an EBA and if you’re a small business, it’s something you can agree with your staff. It’s not something that needs to be prescribed in legislation, and the risk is, by doing that it becomes heavy-handed.”

Almost a decade ago, France pioneered right to disconnect laws to tackle the ‘always-on’ work culture that has led to employee burnout and stress. Other European nations followed suit.

McKellar was living in France when the so-called El Khomri law came into effect. He said it made “absolutely no difference at all” to the lives of employees, and he did not believe many French organisations would have altered the way they were doing business in response to the legislation.

Employment and industrial law barrister Ian Neil, SC, said legislating a universal right was a top-down approach that has not worked elsewhere.

“It introduces a rigidity into what otherwise would be an important and significant economic and social reform,” Neil said. “That is not needed and in the end will prove antithetical to the success of that reform.”

Burke was asked this week why the government needed to legislate a provision that organisations had already been managing through their enterprise agreements, and effectively creating extra red tape for businesses.

“It is to make clear that workers have a right to not constantly work for the time that they are not paid,” Burke told ABC’s 7.30 program.

“At one level, it is interesting that this is even controversial. At its core, all we are saying is that you are meant to be paid when you are working in Australia.”

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