Preparing for the 'right to disconnect'

Employees will soon have the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of working hours – unless that refusal is unreasonable. This right extends to contact from other employees, suppliers, clients or other third parties if the contact relates to the employee’s work. The right applies to all forms of contact including, for example, phone calls, emails, text messages and Teams messages.

This right to disconnect commences on 26 August 2024 for many Australian workplaces. For small businesses, the new laws will commence on 26 August 2025.

The new laws do not mean that all employees will have a blanket right to “disconnect” from any contact outside their working hours. The critical question is whether the employee’s action to refuse to monitor or respond to contact is unreasonable.

Assessing reasonable refusals

Determining whether an employee’s refusal is unreasonable will need to be assessed on a case-by-case basis and must consider a number of factors, including:

• The reason for the contact or attempted contact
• How the contact is made and the level of disruption it causes for the employee
• The extent to which the employee is compensated to remain available or perform work in addition to their working hours – including non-monetary compensation such as additional leave, flexible work arrangements or other rewards
• The nature of the employee’s role and responsibilities
• The employee’s personal circumstances, including any family or caring responsibilities.

If contact is required under a law of the Commonwealth, State or Territory, it will be unreasonable for an employee to refuse contact. Otherwise, there must be an assessment of the unreasonableness of the employee’s refusal to determine whether they can lawfully “disconnect.” Importantly, the new laws do not mean that employers cannot contact an employee outside of their working hours – or that they will be acting unlawfully by doing so – rather, there is now to be a determination about whether an employee’s refusal is unreasonable or not.

Why has the right to disconnect been introduced?

For some time, there has been heightened concern about the impacts of modern technology blurring the boundaries between work and personal life and employees not necessarily being compensated for performing additional work. As a consequence of the increase in flexible and remote work, employees often find themselves working outside of traditional ordinary hours – responding to emails or taking phone calls at all hours of the day.

While this might work well for some, for others, the feeling of being “always on” can exacerbate the risk of burnout and have a negative impact on an employee's mental wellbeing. In light of this, and seeing the success of right-to-disconnect laws in overseas jurisdictions, the Greens initially proposed a more expansive right to disconnect which sought to prohibit employers from contacting employees outside working hours in March 2023. This right was tempered during negotiations which saw the current right to disconnect being a late amendment to the Closing Loopholes (No. 2) Bill.

The focus of the right to disconnect is on the employee’s actions and not the actions of the employer or a third party making contact – the new right does not prevent them from making contact with an employee outside working hours. Employers will also be prohibited from taking adverse action against employees who exercise the workplace right to disconnect and the Fair Work Commission also has new powers to arbitrate and make orders regarding the right to disconnect.

Untested legislation

The new right has the potential to significantly impact employers, especially global businesses spanning multiple time zones or where a large proportion of employees work flexibly, so it’s important that employers take practical steps now to be prepared for this right coming into effect.

As this is a newly created right concerning untested legislation, it is unclear at present how the various factors will be interpreted and applied by the Fair Work Commission and whether certain factors will be given greater weight than others. In saying that, we think the reason for the contact, the nature of the employee’s role and seniority will be the key considerations in determining whether an employee is entitled to not respond to contact outside of hours.

In addition, if an employee is renumerated to work “reasonable additional hours,” we think it is less likely that it would be reasonable for them to refuse contact than an employee simply paid at the minimum wage or award rate, depending on their personal circumstances.

Communicate expectations, compensation

It will be particularly important that employers clearly communicate and document whether the employee is compensated for working outside hours, whether the role requires outside hours contact and expectations of employees in responding to contact outside of hours from supervisors, colleagues, clients, and others.

If there is a dispute about whether an employer thinks an employee’s refusal is unreasonable, there is a requirement that the parties discuss and attempt to resolve the dispute at the workplace. If resolution cannot be reached at the workplace level, then employees or employers can seek the intervention of the Fair Work Commission to make “stop orders” or otherwise deal with the dispute.

The Fair Work Commission can make “stop orders” that:

• An employee be prevented from, or stop, unreasonably refusing to monitor, read or respond to the contact
• An employer be prevented from, or stop, taking disciplinary action or any other action against an employee
• An employer be prevented from, or stop, requiring the employee to monitor, read or respond to the contact

As part of the changes introduced, all modern awards must include a right to disconnect term and the President of the Fair Work Commission has recently issued a statement outlining the Commission’s approach to implementing the changes and proposing a timetable for consultation from interested parties. That statement includes an analysis of existing modern award terms that may impact a new right to disconnect award term.

For example, it is noted the introduction of a right to disconnect term could impact overtime provisions, reasonable additional hours terms, recall to duty or on-call clauses, span of hours and maximum daily hours – all highlighting the potential significance of this new right.

The new right has resulted in many employers seeking guidance on how to respond to the changes. We set out a checklist below for some practical steps employers can take now in preparation for the start of the changes.

Checklist on right to disconnect – practical steps for employers

• Review any current practice of employees’ work activities outside of ordinary working hours and consider if changes are required.
• Review employment contracts to determine whether they require updating and review existing flexibility arrangements to ensure that they are current.
• Prepare or amend policies regarding the use of work technology outside ordinary working hours.
• Audit position descriptions to ensure they clearly reflect expectations regarding outside hours contact.
• Conduct training for managers and employees to ensure understanding of the expectations in the workplace and the new right and to promote wellbeing of employees and minimize the risk of adverse action claims.
• Communicate with third parties (such as clients or suppliers) regarding expectations about responses from employees out of hours.

Vanessa Andersen is a partner and the NSW State Government Sector Leader at Maddocks in Sydney. Michael Nicolazzo is a partner and the Practice Team Leader for the Employment & Workplace team at Maddocks in Melbourne. Emma Short is a senior associate practicing employment law at Maddocks in Sydney. Michaela Biggins is a lawyer in the Employment Team at Maddocks in Melbourne.