The Right to Disconnect 

At the end of a long workday, we want to get home, kick our feet up and forget about work for the next couple of hours. Unfortunately, technology makes this almost impossible, as we’re still reachable through texts, calls, emails, and other applications. 

Now, it is likely that clocking out of work means precisely that. 

Thanks to the new Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 that just sailed through Parliament, employees may now have the “right to disconnect”, coming into effect on 26 August 2024 (and 26 August 2025 for small businesses).  

What is the right to disconnect? 

The right to disconnect allows an employee to reasonably refuse contact or attempted contact from their employer or third parties on work-related matters, outside of their work hours.  

In saying this, whether or not an employee is able to ignore a text from their boss at 8pm depends on multiple factors. The law will consider the urgency of the message, how the employee was contacted, whether they are being paid for the overtime, and what their job involves (s 333M). Where a Commonwealth, State or Territory law specifically requires employees to be contacted, refusing contact in such circumstances may be considered unreasonable.  

How does it work? 

Once this law becomes operational, an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer or third party, which relates to work, outside of the employee’s working hours, unless the refusal is unreasonable. They can refuse to take calls, respond to texts, emails and other work-related communication, so long as this refusal is reasonable. 

Why is this right important? 

In 2022, 71% of workers performed work outside of scheduled working hours, with 44% of them having to do this often due to employer expectations.  

While we can all acknowledge the benefits of working flexibly, which is facilitated by digitisation, working flexibly has its downsides. By constantly being ‘at work’, even when employees are at home, employees have less personal time and sleep, and higher stress levels. Research has shown that the mere expectation of availability, without actually engaging in work during out of work hours, increases strain for employees and their families. Additionally, due to fear of missing out on important or rewarding experiences which colleagues may have access to while one is away, employees experience stress and anxiety related to unfinished tasks when they try to disconnect on their own. 

Having a healthy separation of work life and private life, which the right to disconnect aims to achieve, will have numerous benefits for workers and even their families. It goes without saying that healthy workers are an advantage to any business. 

How can it be enforced? 

Where a dispute arises regarding this right, parties must attempt to resolve this in their workplace. Should this fail, a party can apply to the Fair Work Commission to either obtain an order to stop refusing contact or to stop taking certain actions, or deal with the dispute. The FWC may also deal with the dispute by arbitration if the parties agree on that. The Act also prohibits employers from taking adverse action against their employees because of this right.  

Conclusion

There have been many changes to employment law in Australia in recent years. To ensure that you will not be breaching your employee’s “right to disconnect” and to ensure that your employment contracts are up-to-date and compliant, contact OpenLegal at enquiries@openlegal.com.au or fill out the enquiry form below for a quote.