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02 May 2024
6 Min Read
Michelle Lee Shu Ling (Student Writer), Nellie Chan (Editor)
Explore the shift from the 9-to-5 grind to the 5-to-9 unwind with insights on the Right to Disconnect, reshaping work-life balance in the digital age!
In the age of constant connectivity, the lines between professional and personal life blur. Picture a serene evening, savouring a cup of tea while indulging in a Netflix binge. However, every ping, ding, and ring of your devices has you tethered to the relentless demands of your inbox. It is within this paradoxical reality that we often find ourselves yearning for respite — to unplug from work, unload its burdens, and simply unwind. Drowning in this sea of work, the Right to Disconnect throws us a lifeline.
The Right to Disconnect is a proposed human right regarding an employee's ability to disconnect from work, primarily by refraining from engaging in work-related electronic communications such as emails or messages during non-work hours. While the proliferation of communication and information technologies has drastically altered the modern working environment, offering flexibility and freedom to employees, they can also blur boundaries, encroaching into employees' private lives.
Precedents to the Right to Disconnect originated in France. In a landmark case in 2001, the French Supreme Court ruled that 'the employee is under no obligation to accept taking work back home, nor to set up work instruments and file processing at home.' Additionally, in 2004, it affirmed that 'not being reachable outside of working hours on a personal cell phone is not of wrongful nature and cannot be used to justify dismissal on disciplinary grounds.'
While other countries such as Italy, Germany, and Taiwan have implemented similar measures, Australia's Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 is the most recent to make headlines. In an interview with Australia's public broadcaster, the Minister for Employment and Workplace Relations, Tony Burke stated, '... some people are now constantly in a situation of getting in trouble if they're not checking their emails... being expected to be working for a whole lot of time that they're not being paid.'
The Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023 was passed in both Houses on February 12, 2024, and the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 received royal assent on February 26, 2024. This Act introduces significant amendments to the Fair Work Act 2009, including a new statutory right for employees to disconnect outside of work hours.
According to Part 8, Division 6, Subdivision A, Section 333M(1) of the Act, 'An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.' When determining whether a refusal is unreasonable, the following factors must be taken into account:
(a) the reason for the contact or attempted contact;
(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
(c) the extent to which the employee is compensated;
(d) the nature of the employee's role and the employee's level of responsibility;
(e) the employee's personal circumstances (including family or caring responsibilities).
The Act also establishes a procedure for resolving disputes (Subdivision B). In the event of a dispute, the involved parties are required to attempt resolution at the workplace level through discussions. If these discussions fail to resolve the dispute, any party involved may seek intervention from the Fair Work Commission.
The prevalence of mental health issues impacts all aspects of one's life, with the workplace being no exception. A 2018 study conducted by Relate Malaysia found that 4.57 million working adults reported mental health issues. Subsequently, a 2019 survey conducted by AIA Vitality revealed that the Malaysian workforce is stressed and sleep deprived, with 51% suffering from at least one dimension of work-related stress and 53% getting less than seven hours of sleep per day.
Currently, the Malaysian Mental Health Act (2001) and the Mental Health Regulations (2010) lack provisions regarding mental health in the workplace. While the Occupational Safety and Health Act (OSHA) 1994 requires employers 'to ensure, so far as is practicable, the safety, health, and welfare at work of all his employees', it emphasises physical safety and lacks explicit provisions regarding mental health issues such as depression, anxiety, and stress.
Given this evident gap in our legal framework, Malaysia stands to significantly benefit from implementing a similar act dedicated to addressing mental health in the workplace, specifically by respecting employees' non-work hours.
The implementation of a similar act in Malaysia holds the potential for significant benefits:
Ensuring that employees can disconnect from work-related electronic communications outside of working hours, the act will establish clearer boundaries between professional and personal life. This reduces stress and overworking, thereby enhancing their mental health.
Respecting employees' non-work hours for rest and recharge, the act can improve their productivity during working hours. When employees maintain a healthy work-life balance, they are more likely to remain concentrated and engaged, leading to increased efficiency and effectiveness.
Implementing a similar act may spur broader changes in company policies and practices. Employers may embrace flexible work arrangements, enhance support for mental health initiatives, and enforce other measures to prioritise employee well-being. This fosters a more supportive and inclusive work environment, benefiting both employees and employers.
The global trend of implementing similar acts, as observed in countries across Europe, South America, and Asia, underscores the growing recognition of work-life balance and mental health in today's workplace. By aligning with these international examples, Malaysia can catalyse a cultural shift towards prioritising employee well-being and promoting a healthier work environment. This not only enhances the country's competitiveness but also attracts skilled workers seeking a supportive workplace culture.
In conversation with Dr Wilson Tay Tze Wern, Senior Lecturer at the School of Law and Governance, the question emerged: 'Will Malaysia introduce a Right to Disconnect Bill?' He provided insights into the feasibility and practicality of such a legislative move, focusing specifically on its implications for employers:
First, sectors necessitating constant availability, such as healthcare and emergency services, would face challenges in adhering to mandated disconnection periods. While the likelihood of urgent calls during non-work hours is lower, it does not eliminate the possibility entirely. Second, employers might need to hire additional staff to cover extended hours, aiming to mitigate the potential loss of business, which could lead to increased costs for goods and services. Third, employers would encounter financial and operational obstacles, as employees may demand compensation for the extended work hours or resist extending work hours altogether.
Ranked as the third most overworked city in the world, Kuala Lumpur highlights the urgency of supporting the well-being of the Malaysian workforce. While we recognise the potential implications of introducing a Right to Disconnect Bill, we cannot ignore the pressing issue of employee welfare. Therefore, echoing the sentiments of lawyer Fatihah Iliani Jamhari, it is imperative to establish a robust legal framework that clearly delineates working hours and guarantees fair compensation through minimum wage standards before enacting such a law. By prioritising employees' physical and mental health and promoting work-life balance, we not only enhance their quality of life but also ensure a healthier and more sustainable work environment for the nation.
Michelle Lee Shu Ling is currently pursuing a Bachelor of Laws (Honours) at Taylor's University. When she's not serving as President of Taylor's Lakeside Model United Nations (TLMUN) Club or Editor-In-Chief of Taylor's Lexicon Editorial Board, she writes!
