Experts highlight implications of new legislation for employee-employer relationship
Australia’s newly implemented “right to disconnect” laws are poised to alter the work culture, but legal experts warn that the impact may be limited due to existing employment contracts and the varying nature of roles within the workforce.
Under the new regulations, workers at companies with 15 or more employees can legally decline to monitor, read, or respond to work-related communications outside their designated working hours.
Yet, the legislation specifies that refusals must be “reasonable,” a term that has sparked considerable debate and confusion.
“What does that mean? That is the million-dollar question,” said Alex Martin, a commercial litigation specialist at Taurus Legal Management, told news.com.au.
He highlighted that determining reasonableness would depend on various factors, including the purpose of the contact, the employee’s role within the business, and their personal circumstances, such as caregiving responsibilities or health issues.
Martin also pointed out that high-salaried employees, who often have responsibilities beyond standard working hours, may find it more challenging to assert their right to disconnect.
“If you are a high-paid employee who gets paid for additional hours and you have high-level responsibilities, then it would probably be reasonable for you to take contact after hours,” he told news.com.au.
Conversely, lower-level employees or those with significant personal obligations may find it easier to justify refusing after-hours communication.
“There’s been a lot of misconception around this new legislation,” an employment lawyer recently told HRD Australia, offering tips for HR.
The potential for the laws to be activated in cases of disciplinary action is another area of concern. If an employee were to face disciplinary action for not responding to after-hours communication, such action could be deemed unlawful, and if it resulted in dismissal, it could be grounds for an unfair dismissal claim, according to Martin.
The Fair Work Commission (FWC) is responsible for assessing whether a refusal to respond to after-hours contact is reasonable. Thus, the FWC has the authority to issue orders and impose fines on employers who fail to comply with these orders.
Penalties for non-compliance could reach up to $18,780 for individuals and $93,900 for corporations, said news.com.au.
However, many workers may be excluded due to the terms of their existing employment contracts.
Jessica Heron, an employment issues lawyer at Maurice Blackburn, told news.com.au that many contracts include clauses requiring employees to work reasonable additional hours.
“If your employment contract has a clause that says your employer can direct you to work reasonable additional hours, which is effectively overtime, then the employer might have an argument that it is unreasonable for you to refuse any contact out of hours because you have that clause in your contract,” she said.
She cited “super vague” terminology in the new legislation, as seen with workers with families.
“We have to use a commonsense approach, because all the Act says is ‘family responsibilities,’ it is pretty broad,” said Heron.
“Another factor was income and if you were a project manager on $300k plus then good luck saying it was unreasonable contact.
And while the new laws may not provide a direct entitlement for many workers, they represent a potential cultural shift in Australian workplaces.
“It looks good on paper, and it might create a culture where employers are a bit frightened to contact employees or they think twice before they do it for some things,” she told news.com.au.
Professor Emmanuel Josserand, formerly of UNSW Business School, argued that such laws are central for maintaining healthy boundaries between work and personal life, particularly in light of rising work-related mental health issues.
“This new legislation represents a significant shift in the Australian work culture and workplace rights,” he said in the article.
“With the growing adoption of flexible and remote working arrangements, it’s essential for both employers and employees to establish healthy boundaries and expectations around communication outside of standard working hours.”
