Workers across Australia will now be able to separate work and play, with the country’s ‘Right to Disconnect’ laws have officially come into effect. Under the new legislation, employees will have the formal right to refuse unreasonable contact from their employers outside of working hours, marking a significant step in the designation of work-life balance. So, what do the new Right to Disconnect laws actually prevent, and what do the new rules mean for Australian businesses?
What are Right to Disconnect Laws?
First introduced in France in 2017, Right to Disconnect laws are a series of industrial relations guidelines that dictate fair and reasonable hours of work. According to the Australian Fair Work Ombudsman, the legislation gives employees of non-small business employers the right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours, unless doing so is unreasonable. This includes contact (or attempted contact) from an employer or a third party.
For reference, a ‘Third Party’ could include clients, suppliers, staff from other businesses, or members of the public, while ‘Contact’ could refer to a range of communication channels used to engage with employees, such as calls, emails, texts, social media and messaging services.
According to John L. Hopkins, associate professor at the Swinburne University of Technology, the growth of digital devices – including smartphones, laptops, tablets and smart watches – has been a catalyst for the sweeping industrial reform. With more digital touchpoints than ever before, Australian workers are engaged well beyond their contracted number of hours.
“A 2023 Australia Institute study estimated Australian workers on average were doing an extra 5.4 hours of unpaid work per week,” Professor Hopkins said. “The unofficial encroachment of work duties into workers’ personal time – also called “availability creep” or “time theft” – equates to an extra 281 hours’ unpaid work per year.”
The Associate Professor of Management and Innovation estimates that this ‘Time Theft’ is costing workers an average of AUD$11,055 annually, leading to serious concerns for employee health and welfare.
Right to Disconnect Laws in Australia
In Australia, changes to the Fair Work Act have granted workers an “enforceable workplace right to refuse to monitor, read or respond to contact, or attempted contact, from their employer outside of their working hours, unless such refusal is unreasonable”. That is not to say that employers cannot reach out to employees outside of those hours; merely that workers can ignore their requests without disciplinary action.
Under the legislation, from Monday, 26 August 2024, workers at businesses with more than 15 employees will now have the right to disconnect. However, the framework is thin and not entirely ironed out, something that the Fair Work Commission has acknowledged is a challenge. The workplace tribunal is required to provide guidelines around the new entitlement but has so far declined to do so. According to the ABC, the ombudsman has instead indicated that it would be “better off issuing guidelines after it has dealt with a few disputes around the new entitlement”.
According to Professor Hopkins, the laws should challenge managers to create a work culture where employees feel comfortable disconnecting from work. If disputes arise, however, they will be subject to review by the Fair Work Commission.
“In Australia, the right to disconnect will be a right under general protection laws,” Professor Hopkins said. “Disputes about an employee’s response will need to be discussed and resolved at the workplace level but, if a resolution isn’t possible, employees or employers can take the case to the Fair Work Commission.”
What Constitutes ‘Unreasonable’ Contact?
As Professor Hopkins explains, the new Australian law isn’t a blanket end to communication outside of hours. The Right to Disconnect guidelines, when officially outlined, won’t restrict managers from contacting employees whenever they wish, but it will give their employees a legal right to refuse to engage.
“If an employee chooses not to respond, disciplinary action cannot be taken, nor can the employee be treated differently, such as through rostering or performance requirements, for deciding to disconnect,” Professor Hopkins said. “This should encourage conversations about what represents reasonable contact. The Fair Work Commission says this must be based on the reason for contact, the employee’s personal circumstances, the nature of the employee’s role and responsibilities, and whether the employee is being compensated for being available outside ordinary work hours.”
As per the Fair Work Obudsman’s official website, when working out whether an employee’s refusal is unreasonable, the following factors must be considered:
- the reason for the contact
- how the contact is made and how disruptive it is to the employee
- how much the employee is compensated or paid extra for:
- being available to perform work during the period they’re contacted, or
- working additional hours outside their ordinary hours of work
- the employee’s role in the business and level of responsibility
- the employee’s personal circumstances, including family or caring responsibilities.
When Do the Right to Disconnect Laws Take Effect?
Australia’s Right to Disconnect laws have been rolled out in stages, meaning that while some industries are subject to the legislation, others are still in the early implementation phase. According to the Australian Public Service Commission, the laws are effective for all “national system employees” from 26 August 2024 and for small businesses from the same date in 2025.
Employers and employees are encouraged to discuss out-of-hours contact and set expectations that suit the workplace and the employee’s role. For more information on Australia’s Right to Disconnect laws, visit the Fair Work Ombudsman website.
