Can I turn my phone off?
By: Anthony Drake
Published: 28/02/2018
Introduction

Technology is changing the way we work and think.  There is an expectation in the modern connected world that employees will always be available to respond to the employer’s or customer’s demands.  A lack of availability or responsiveness is often perceived as detrimental to competitive advantage.

At the start of last year France introduced a law giving workers a right to disconnect from their work devices, calls after work and communications during holidays.  This new law was driven by a concern that an ‘always on’ culture can create stress, interrupt family life and not allow workers a proper opportunity to get time to rest and recharge.  This new law only applies to enterprises with more than 50 employees at this stage. 

The current law in New Zealand

In New Zealand workers enjoy the right to an eight-hour working day and 40-hour working week.  However, the introduction of flexible working arrangements and the ever increasing use of new and portable technologies have changed traditional work patterns, including how workers respond to work demands.  This raises the issue which the French have attempted to address – when does the workday finish?

There is a good analogy to be made to the “sleepover" cases decided by the New Zealand Courts that employees who by the nature of their work are required to remain connected to their digital devices (to respond to emails and calls) after ordinary working hours have finished.  In the sleepover case[1], the Courts found that the employees’ ‘sleepovers’ constituted work and that they were entitled to be paid (at least the minimum wage) for every hour they were on site.

Recent amendments to the Employment Relations Act 2000 (zero-hour contracts) prohibit employers from requiring employees to be available above the agreed hours stated in their employment agreements unless employees are reasonably compensated for that availability as agreed in the employment agreement.  Availability requirements and compensation rates need to be agreed, and employers also need to have a genuine reason based on reasonable grounds for availability.  The zero-hour legislation guaranteed hours of work, start and finish times and days of the week.  It is clear that this legislation did not contemplate the expectation that employees will be connected (and responsive), should the employees be compensated for that, the same way that they are compensated for zero-hour contracts and for “sleepovers”.
 
It is commonplace in New Zealand for employment agreements (particularly salaried employees) to contain provisions that require employees to perform their job effectively and to do so they may be required to work additional hours as required by the employer.  And any additional hours worked do not attract any additional payment (except as required by the Holidays Act 2003) as it is acknowledged that this has been included in the employee’s remuneration.  Some employment agreements even state that the employee may be required to work reasonable additional hours in excess of ordinary hours to meet the operational requirements of the business over the course of the year.  The salary recognises the requirement to work a reasonable amount of additional hours and takes into account whether additional hours are worked or not.

The Health and Safety at Work Act 2015 will apply to employees who raise concerns about work-related stress.  A prudent employer will monitor an employee’s work situation to ensure that the employee is not overworked and the employee’s “personal time” is not unreasonably interfered with.

Conclusion

The French law needs to be seen in context – employees in France work a 35 hour week, enjoy six weeks’ annual holidays and are protective of their famous work/life balance.  New Zealand has followed the global trend which recognises that businesses increasingly work 24 hours a day, seven days a week.  If New Zealand is to compete on the world stage, our laws need to reflect the reality of modern business practices while at the same time protecting an employee’s right to a work/life balance.

What’s the lesson here? The “sleepover” cases may be broadly relevant.  The cases appear to have left the door open for employees who remain connected outside of normal work hours to argue that this constitutes work for which they should be paid, and a more strict approach to contractual hours be applied.  A general catch-all contractual provision (that employees may be required to work additional hours “from time-to-time”) may no longer be appropriate.  Employers may need to consider incorporating a provision into employment agreements that addresses the expectations of employees who are provided with portable digital devices and technology, and are expected to be readily available outside of normal work hours and the workplace. 
 
[1] Dickson v Idea services Limited [2011] NZCA 14.
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