May 1, 2024

The right to disconnect: what does it really mean for your workplace?

Earlier this year, the ‘right to disconnect’ gained significant attention (a lot of it negative) after it was passed as part of the Closing Loopholes Act (No 2) 2024. 

The right to disconnect will become a reality for many Australian employers and employees when it’s incorporated into Modern Awards in August this year. However, it won’t apply to small businesses and their employees until August 2025.   

Some of the more sensationalist media outlets claimed that enshrining the right to disconnect into our laws was unfair to business and would reward employees who weren’t committed to their jobs. In fact, one outlet went so far as to say that the right to disconnect was a symbol of Australia’s national decline.

But is the right to disconnect really that bad for business? And how will it restrict what you can do as an employer or manager? 

We explore the realities of the right to disconnect.

What are the right-to-disconnect laws, and what do they really say?

The right to disconnect is a concept that says employees’ work shouldn’t unreasonably encroach on their leisure time through unnecessary out-of-hours employer communications and requests. 

The idea has gained traction throughout Europe and other parts of the world, with jurisdictions including France, Italy, Ontario, and Argentina already having passed laws upholding the right to disconnect.

In Australia’s case, the government has enshrined the right to disconnect into law by introducing two separate employee rights in the Fair Work Act 2009. These are:

  • An employee can refuse to monitor, read or respond to their employer’s contact or attempted contact outside of their working hours unless doing so is unreasonable.
  • An employee can refuse to monitor, read or respond to a third party’s (i.e. a customer or client’s) attempted contact if it’s work-related and outside of working hours unless doing so is unreasonable.

‘Reasonableness’ the key factor 

As the wording of these provisions makes clear, an employee can only refuse to interact with their employer or customers/clients outside of work hours when it’s reasonable to do so. 

Fortunately, the new laws then go on to mention what needs to be taken into account when determining whether contact is reasonable or unreasonable. In particular, they say that the following needs to be considered:

    • The reason for the contact. Presumably, if the employer is contacting the employee for an urgent or serious matter, that potentially makes their actions more reasonable. 
  • The nature of the contact. The way in which the contact was made, and the level of disruption it causes also count towards whether or not contact or attempted contact is reasonable.  
  • The extent to which the employee is compensated. If an employee is either paid to perform work outside of work hours, or paid to perform extra hours of work, this makes contact more reasonable.
  • The employer’s role and employee’s level of responsibility. Generally, the more responsibility an employee has, the more reasonable it will be for an employer to make contact.
  • The employee’s personal circumstances. This includes any caring or family responsibilities.

The new laws say that disputes over the right to disconnect should first be resolved at the workplace.

If that fails, either party can apply to the FWC for the matter to be resolved. The FWC has the authority to make orders it considers appropriate, including stopping an employer from making contact or compelling an employee to respond. It can also make orders for mediation or conciliation.

What the right to disconnect means in practice

The right to disconnect doesn’t prevent all employers from contacting all employees outside of working hours. Employees can only refuse to monitor communications—such as their phone or email—when it’s reasonable to do so.

More importantly, whether or not an employee can refuse depends on what they and their employer do. For instance, it’s probably not unreasonable for an employer to contact an executive or professional with considerable responsibility or technical knowledge outside of working hours when they’re genuinely needed. It may be more unreasonable to contact someone low-level or generalist whose skills aren’t quite as necessary.

It’s also likely that it more be more reasonable to contact someone outside of working hours where their role requires a high level of customer service and interaction. 

Want more?

The right to disconnect laws won’t mean all employees can refuse to answer email and phone when it’s time-sensitive and critical to business operations. However, they are likely to prevent employers from continually contacting staff for trivial or non-urgent work outside of work hours. 

At the very least, employers should consider how these new laws might apply and, where doubt exists, seek advice. 

If you’d like to learn more about how the laws specifically apply to your workforce, get in touch

say hi to our author

Merilyn founded Catalina Consultants in 2012 on the belief that all organisations, regardless of size, should have access to top quality bespoke HR services. She enjoys working closely with her clients and believes that the best results are built on relationships of rapport, trust and authenticity. Growing up, Merilyn had her sight set on stardom and dreamed of becoming an actor. She also sang and played the piano, but ended up studying accounting and HR. Whilst she hasn’t won her Grammy just yet, she still loves a good karaoke night. Merilyn loves to travel with her family, with South Africa being one of her most memorable destinations.

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