Australian employees already have rights when it comes to choosing whether they will work additional hours beyond their working day. Until recently, what was missing was guidance about what happens with contact and enquiries that might not amount to work, even though they intrude on your personal time.
Laws giving employees the right to refuse employer (or third-party) contact outside working hours came into effect from 26 August 2024 for employees of non-small businesses (15 or more employees). The right to disconnect will become available for small business employees from 26 August 2025.
The increased availability of new technologies – smartphones in particular – has brought with it an increasing sense of connectedness, but in some cases, that has also meant an increased sense of being tethered to your work, no matter what time of day. The same technologies that enable flexibility and working from home also mean that work is always at your fingertips and that workers are almost always contactable. The right to disconnect laws will allow workers to "switch off" from work and are aimed at providing a clear distinction between working hours and personal time.
Because the new laws apply differently to different employees, this article only provides a broad overview of the law. If you're considering your rights in relation to the right to disconnect, it's best to seek legal advice.
Right to disconnect laws commenced August 2024
Legislative changes to employment laws commenced in August 2024 (for non-small-business employees) and have enshrined, for the first time, the "Right to Disconnect" protections for Australian workers. The Right to Disconnect is essentially a right for employees to not monitor or respond to contact (e.g. phone calls and emails) outside of working hours. The same laws take effect for small business employees from August 2025.
The introduction of these laws follows similar moves in other countries (like Ireland and France), in recognition of the increased blurring of boundaries between working and personal time, which has been widely accepted as having been exacerbated by the COVID-19 pandemic.
The laws provide for a Right to Disconnect in federal employment legislation (the Fair Work Act 2009), as well as requiring modern awards (which set the minimum terms and conditions of employment for many employees) and enterprise agreements (agreements on working conditions made at an enterprise level) to have a term that deals with the Right to Disconnect.
What is the Right to Disconnect?
Under Australian employment law, an employee may refuse to monitor, read or respond to contact (or attempted contact) from their employer or a third party (such as a client or provider) outside of working hours unless that refusal is unreasonable.
The key factor is whether refusing contact or attempted contact is unreasonable. In some scenarios, for example where an employee is paid extra to be available (either in the form of an additional allowance or in their base salary), or where it is a genuine emergency, it may be unreasonable to refuse to be contacted. It will also be unreasonable to refuse contact if the contact is required by law.
There are also factors which take into account the employee's personal circumstances. For example, it may not be unreasonable to refuse contact if an employee isn't a senior employee or has family or caring responsibilities.
This doesn't mean that it's illegal for an employer or a third party to try to make contact with you, but it does mean that there are circumstances in which you can refuse that contact. It also means that, as long as it is not unreasonable, you may be able to refuse to monitor or respond to communications - for example, by not checking or replying to emails outside of hours.
What happens if I exercise my Right to Disconnect?
Exactly how the Right to Disconnect affects you will depend on a number of factors like:
- the work you do;
- your remuneration;
- the industry you work in and the modern award (if any) that you're covered by;
- what your employment contract says; and,
- whether you're covered by an enterprise agreement.
For this reason, you should seek advice about your rights before you exercise the Right to Disconnect.
If you refuse to monitor, read or respond to contact outside of working hours, and that refusal is not unreasonable, your employer may contravene your workplace rights if they take adverse action (such as disciplinary action against you and/or terminating your employment). However, if your refusal is unreasonable, they may be able to take those steps. For this reason, it is imperative that you obtain advice, know your rights, and then make an informed decision about whether you refuse outside-of-hours contact.
If there is a dispute about your Right to Disconnect (for example, if you refuse contact and your employer thinks that that refusal is unreasonable), then either you or your employer can refer the matter to the Fair Work Commission if workplace discussions don't lead to a resolution.
If the matter doesn't settle, the Fair Work Commission can make a range of orders, including that the employer should refrain from taking any disciplinary action or no longer require you to monitor, read or respond to contact outside of usual hours. The Fair Work Commission can also order an employee to no longer unreasonably refuse contact.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
