The Right to Disconnect from Work

April 10, 2024

Employment

Reading time: 6 mins

The right to disconnect is now part of Australian law. The right to disconnect will start in 2024 for large employers and in 2025 for small employers. There are some exceptions to this right and the right doesn’t mean that every employee can switch off their phone and refuse to communicate.

With us all living in a fast-paced digital age, the boundaries between work and personal life have become increasingly blurred. With smartphones and laptops keeping us connected around the clock, many employees find themselves dealing with the pressure to always be available, even during off-hours.

Recognising the challenges that come with mental health and work-life balance, Australia has taken a big step forward with the passing of the Closing Loopholes No. 2 Act 2024 (The Act).

This law acknowledges the importance of maintaining a healthy work-life balance. It also protects the right to disconnect as a fundamental workplace right.

Key takeaways on the right to disconnect

The new provisions seek to address the issue of unreasonable expectations from employers regarding unpaid work outside of regular working hours by making the right to disconnect a workplace right under the Fair Work Act.
Employees may be able to ignore their employer, customers or clients out of their ordinary hours, but workers must act reasonably having regard to the exceptions outlined in this article.
If an employer takes adverse action against a worker when they reasonably refuse contact out of regular work hours, there will be grounds to pursue them in the FWC.
The FWC is in the process of publishing guidelines on this matter prior to its implementation in August.
If you have any questions about your circumstances and how to get ahead on the upcoming right to disconnect laws, please get in touch with our dedicated team of employment lawyers.

What is the right to disconnect?

The right to disconnect is not a new concept. Many countries have implemented laws on this right.

In Australia, the right to disconnect will commence on 26 August 2024 for most employers and 26 August 2025 for small business employers.

The provisions do not prohibit employers from contacting employees. Employees can say no to checking, reading, or responding to work-related calls and messages outside of their normal work hours. This communicated may come from their employer, clients, or customers. This applies to any kind of communication like emails, calls, texts, or other messaging apps.

From August 2024, the right to disconnect will be a workplace right for the purposes of general protections provisions under Part 1-3 of the Fair Work Act 2009 (Cth).

If an employer tries to punish or dismiss an employee for reasonably refusing to be available outside of their regular hours, this will be grounds for a claim of adverse action.

Exceptions to the right

The right to disconnect won’t apply if an employee’s decision not to respond is unreasonable. What is considered reasonable is broad. Factors which will be considered in deciding if an employee’s refusal to reply to their employer or a third party’s contact is unreasonable include:

whether the employee is paid to be available during the time of contact or for extra hours beyond their usual work hours and their level of pay
the wording of the employee’s contract and job description
the employee’s job role and how much responsibility they have
why the contact was made
how the contact was made
how much disturbance the contact caused to the worker
personal factors, like family or caregiving duties, that might affect their ability to respond

Disputes about the right to disconnect

If there’s a disagreement between an employer and an employee about this right, the employee or employer can bring an application to the Fair Work Commission (FWC).

The FWC can make decisions or impose Orders to:

have the matter dealt with through mediation, conciliation or arbitration
stop an employee from unfairly refusing to talk to their employer outside of work hours
stop an employer from contacting an employee after work hours
stop an employer from punishing an employee for refusing to be available outside of their regular hours

Practical tips for employers and employees

What should employers do?

To protect themselves and handle the potential challenges, employers should:

be clear and upfront about expectations during recruitment processes regarding working hours and reasonable additional hours
consider workplace and industry requirements and whether employee’s will need to work outside their ordinary hours
check the wording of employment contracts and job descriptions, especially parts about pay, compensation, and responsibilities
review existing rules and company policies about employees being reachable out of ordinary work hours
prepare new workplace policies about working outside of agreed-upon work hours
train managers and HR staff so they understand the new rules and don’t treat employees unfairly if they refuse to be contacted after work hours
train employees about their new right to disconnect and provide them with information about it
keep decision making memos and notes on considerations regarding employee contact

What should employees do?

strike a balance between keeping your employer happy and aiming for high performance, and maintaining an appropriate work-life balance
set expectations with your employer and colleagues, for instance by using an appropriate email signature or voicemail
have an open conversation with your employer; don’t suddenly stop answering emails outside of regular work hours if this has always been your practice

About the Author

Farrah Motley

Director of Prosper Law. Farrah founded Prosper online law firm in 2021. She wanted to create a better way of doing legal work and a better experience for customers of legal services.

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