"Right to disconnect" laws will shortly be coming into effect in Australia. These laws provide employees protection from being contacted by their employer or third parties outside the employee's working hours.
What are the right to disconnect laws?
The laws enable an employee to refuse to monitor, read or respond to contact or attempted contact from the following people outside the employee’s working hours:
The employee's employer; and
A third party, such as a client of the employer.
This means an employee can refuse to read emails, respond to calls, texts or work-related messages outside of their ordinary hours of work. This includes contact from third parties, such as a client of the employer.
However, an employee’s refusal to be contacted outside of their working hours may be “unreasonable”. This means that in certain situations, they may not have a right to disconnect.
When is the employee's refusal to be contacted "unreasonable"?
Whether an employee's refusal to be contacted is unreasonable will depend on factors including:
The reason for contact
Whether the employee is being compensated (both financially and non-financially) for the time they are being contacted or are being compensated for working additional hours outside the employee’s ordinary hours of work
The nature of the employee's role and their level of responsibility
The employee's personal circumstances, including family and caring responsibilities
Other relevant factors
What if there is a dispute between the employee and employer about the employee's refusal to be contacted outside of work hours?
A dispute between an employee and employer about the right to disconnect must first be attempted to be resolved in the workplace via a discussion between the employer and employee.
If these discussions do not resolve the dispute, an employer or employee can apply to the Fair Work Commission to deal with disputes about the right to disconnect where:
An employer considers the employee's refusal is unreasonable
An employer has asserted the employee's refusal is unreasonable and the employee considers the refusal is not unreasonable
The Fair Work Commission can make orders which include:
An order which prevents the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contract
An order which prevents an employer from taking disciplinary action against an employee for reasonably refusing to monitor, read or respond to contact or attempted contract
An order which prevents an employer from taking further action to require an employee to monitor, read or respond to contact or attempted contract despite the employee’s refusal to do so
The Fair Work Commission cannot make orders requiring payment of financial compensation if there has been a breach of the right to disconnect laws.
Other important things to know
The right to disconnect will be a workplace right.
The right to disconnect will be a “workplace right” under the general protections provisions in the Fair Work Act 2009 (Cth). This means it will be unlawful for an employer to take adverse action against an employee where they properly exercise their workplace right to disconnect.
The right to disconnect will be incorporated into Modern Awards
The right to disconnect will be incorporated into awards by 26 August 2024. Certain awards may have specific provisions which deal with how the right to disconnect will work in their industry and occupation.
When the right to disconnect laws come into effect
The right to disconnect laws will come into effect:
On 26 August 2024 for non-small business employers
On 26 August 2025 for small business employers
What should employers be doing now to get on top of the right to disconnect laws?
Employers should:
Review their existing employment contracts to determine if employees are being adequately compensated if they are expected to be contacted outside of their ordinary hours of work
Review and if necessary, update any policies and procedures which detail with employees being contacted outside of working hours
Provide training to managers about the new changes to ensure they are aware of the changes and how they may affect their team
Be careful about performance managing employees who have properly exercised their right to disconnect.
Please contact a member of our employment law team if you have any questions about the right to disconnect laws and how they may impact your business.
John Sneddon, Director
(07) 3307 4504
Ruby Nielsen, Senior Associate
(07) 3307 4551
Karim Oreb, Lawyer
(07) 3307 4575
Sophia Chetcuti, Law Graduate
(07) 3307 4515