Is it time to ban after hours work?

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Special counsel Michael Byrnes from Clayton Utz says employers could force people to stop working out of hours by cutting off access to email and work systems at a certain time of day, but it would cause problems for workers.

“It would be, in some respects, a bit simple-minded to simply cut off access at an arbitrary point in the day because whilst technology can imprison and can mean that people are, at least theoretically, on call 24 hours a day, it can also liberate. It means that if an employer has the right flexibility practices in place, employees with, for example, carer responsibilities or employees who, for a number of reasons, have to take time off during what would be considered normal work hours, are able to perform their work at a time that suits them.

“It’s a case of harnessing the technology in a way that allows employers and employees to be flexible, particularly in regard to carer responsibilities or other accommodations that employers either need to make under the law, or should make as a matter of good practice. An arbitrary rule sounds good in theory but actually could be counter-productive.”

He says another issue that arises from the increased use of technology is that if an employee is given access to emails out of hours, can an employer reasonably expect an employee to be checking that out of hours?

“There’s a question as to whether an employer can offer a reasonable lawful direction that employees check emails at all hours of the day and night, simply because there is the technological capacity to do so. The technology does liberate, but it can also imprison in that way. It’s about using these things in a way that is sensible and balanced so they facilitate employers being able to extend to employees, flexibility.”

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