Unplugging the work connection: explaining the ‘right to disconnect’

Advances in technology and increased dependence on our smartphones mean we’re generally contactable 24/7 by friends, family, and bosses. However, employees will soon be able to legally refuse contact or attempted contact from their employer (or from a third party where the contact or attempted contact relates to their work) outside the employee’s working hours.

It’s law in France, but the question is: will it work in Australia? Here we break down the proposed ‘Right to Disconnect’ legislation, the impact it will have on workplaces, and what it means for business owners.

What is the employee’s right to disconnect?

The Fair Work Amendment (Right to Disconnect) Bill 2023 (the Bill) amends the Fair Work Act 2009 (Cth) (FW Act) by providing that an employee has a workplace right to disconnect from work. That is, employees may refuse to monitor, read, or respond to contact or attempted contact, from their employer (or a third party if the contact or attempted contact relates to their work) outside of the employee’s working hours, unless the refusal is unreasonable.

Without limiting the matters that may be considered in determining whether a refusal is unreasonable, the following must be taken into account:

• the reason for the contact or attempted contact;
• how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
• the extent to which the employee is compensated (this also considers any non-monetary compensation afforded to the employee):

1. to remain available to perform work during the period in which the contact or attempted contact is made; or
2. for working additional hours outside of the employee’s ordinary hours of work;

• the nature of the employee’s role and the employee’s level of responsibility; and
• the employee’s personal circumstances (including family or caring responsibilities).

Delayed commencement for small business employers

Similarly to other recent laws like casual conversion, a 12-month delay in commencement for small business owners will apply for the right to disconnect amendments. These proposed laws will not apply to small business employers – businesses that employ less than 15 employees – or an employee of such employer until 12 months after the commencement of the amendments to the FW Act.

Disputes about the employee’s right to disconnect

There are various avenues for dispute resolution in circumstances where an employer believes that an employee’s refusal to monitor, read, or respond to contact or attempted contact is unreasonable which include:

1. Workplace discussions

In the first instance, parties must attempt to resolve the dispute at the workplace level through discussions.

2. Application to the Fair Work Commission to deal with the dispute

If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply for the Fair Work Commission (FWC) to do either or both of the following:

• make an order to stop refusing contact or to stop certain actions; or
• otherwise, deal with the dispute.

The FWC may make an order if they’re satisfied that either or both of the following apply:

• an employee has unreasonably refused to monitor, read, or respond to contact or attempted contact and there is a risk the employee will continue to do so;
• an employee’s refusal to monitor, read, or respond to contact or attempted contact is not unreasonable and there is a risk that the employer will:

1. take disciplinary or other action against the employee because of the employer’s belief that the refusal is unreasonable; or
2. continue to require the employee to monitor, read or respond to contact or attempted contact despite the employee’s refusal to do so.

What does this mean for employers?

The introduction of an employee’s right to disconnect from work will place significant boundaries upon employers contacting their employees outside of working hours. This means that businesses will be required to ensure that they’re organised, proactive, and efficiently utilising work time to complete work. Given matters such as working hours and compensation are critical aspects of these changes, reviewing contractual provisions in these areas is recommended for those employees who are likely to be contacted, and required to respond, outside their usual working hours.

Employers also need to be aware that they will be prohibited from engaging in adverse action against their employee (i.e., commencing disciplinary action or terminating an employee’s employment) because an employee has refused to respond to an out-of-hours text message or phone call. This is because an employee’s right to disconnect from work is now included as a workplace right within the general protections provisions of the FW Act.

Looking forward: other changes on the horizon

On 14 December 2023, several changes from the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 became law. Given the breadth of changes, it was decided that the Bill would be split into two, with the Federal Government has announced that it will pass the Closing Loopholes No 2 Bill which includes the second tranche of workplace relations reform. We will shortly see the remaining changes come into effect which include:

1. changes to the definition of and conversion process for casual employees to permanent employment;
2. changes to “employee-like” work in the gig economy; and
3. changes to the definition of employment.

Once the changes have been enacted, we will provide a further in-depth analysis of what the changes entail and their implications.

About our author

Amanda Curatore is a qualified Senior Associate at Citation Legal and Citation HR. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations and managing risk.

Nick Tindley is a Partner at Citation Legal and the Executive Manager of HR Consulting and Advisory Services at Citation HR. Based in our Melbourne office, he has over 19 years’ experience in providing industrial relations and employment law advice, with particular expertise in the retail industry. In his role as Executive Manager, Nick supervises both the consulting and advisory teams at Citation HR and is responsible for managing a number of key client relationships.