This article deals with a comparative legal analysis of legislative status in Australia, Ontario(Canada), France and Germany in relation to the right to disconnect from work outside of working hours. It also proposes a bill to introduce such a right into the Labor Standards Act. The conclusions of this article are as follows.
First, the review of legislative status in these countries confirms that the Australian approach provides the best protection for the so-called the right to disconnect(“the R2D”). However, the legislation is also considered to be somewhat incomplete from the perspective of dispute prevention, as it is open-ended in terms of determining whether it is unreasonable for an employee to refuse to connect with an employer or third party outside of working hours.
Second, the constitutional basis for the R2D is the right to rest and the right to health. The right to rest is a fundamental right recognised under the right to pursuit of happiness, Article 32(3) of the Constitution of the Republic of Korea, and the right to health is a fundamental right recognised under the right to pursuit of happiness, Article 32(3) and Article 36(3) of the Constitution of the Republic of Korea.
Third, the need for legislation on the R2D based on these fundamental rights is fully justified when one considers the potential erosion and threat to employees’ ‘sustainable work’ resulting from the ‘hyperconnectivity’ caused by the rapid development of ICTs.
Fourth, this article proposes a bill tailored to our legal situation based on a sample formulation on the R2D proposed by Stück lawyer et al. in Germany. What is particularly important here is that the legislation should also reflect the business necessity of employers to contact employees outside of working hours. Accordingly, the bill stipulates that an employee shall have the right to refuse to comply with an employer’s instructions through information and communication devices outside of working hours. The bill also stipulates that an employer shall have the right to use information and communication devices to contact or instruct an employee during outside of working hours when it is necessary to contact the employee urgently due to unavoidable circumstances. In order to ensure the effective protection of this right, the bill also proposes the imposition of criminal penalties and fine for negligence in certain cases.