Australian Employees’ Right to Disconnect from Work

In a move towards improving work-life balance, Australian workers now have a legislated right to disconnect from work. The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 adds new provisions to the Fair Work Act 2009 giving employees a “right to disconnect”, enabling them to “switch off” from certain out-of-hours work-related contact. This means that employees should not be penalised or reprimanded for not responding to work-related matters during their personal time unless their refusal to respond is unreasonable.

This new right addresses the increasingly blurred lines between work and personal life, particularly in the age of remote work and constant digital connectivity. It’s a step towards empowering employees to reclaim their personal time and prioritise their well-being.

Understanding the “right to disconnect”

The right to disconnect gives employees the right to switch off from certain out-of-hours work-related contact. Employees can now refuse to respond to after-hours texts, emails, and calls from their employers or associated parties unless it is unreasonable to do so.

The provisions cover national system employees and employers and commenced on 26 August 2024, unless the employer is a “small business employer”, in which case the provisions apply from 26 August 2025. All modern awards will be reviewed to include industry-specific rights to disconnect for employees.

What factors determine whether a refusal to respond is unreasonable?

The right to disconnect does not necessarily prohibit your employer from contacting you out of hours, however, it will inform the circumstances through which such contact should be made and when it will be deemed unreasonable for you to refuse to respond.

The following factors are not exhaustive, however, must be taken into account in determining whether your refusal to respond is unreasonable:

• The reason for the contact/attempted contact.
• The method of contact/attempted contact and level of disruption caused.
• The extent of compensation (monetary and non-monetary) provided for you to be available or working hours outside of your ordinary hours.
• Your role and level of responsibility.
• Your personal circumstances including family and carer responsibilities.

Where the contact or attempted contact is required by law, an employee’s refusal to respond will be deemed unreasonable.

If your employer contacts you outside of work hours, you can refuse to respond unless it is unreasonable to do so. If you are unsure whether it is unreasonable to respond, you should consider the factors listed above.

If your employer takes adverse action against you for exercising your right to disconnect, you may have a complaint under the Fair Work Act. You should contact your union or a lawyer for advice.

Navigating the right to disconnect: challenges and opportunities

While the right to disconnect is a positive step, its successful implementation will require careful navigation. Clear communication and collaboration between employers and employees are important to ensure its effectiveness.

Employers

Employers should establish clear policies and guidelines around after-hours communication, ensuring that employees understand their rights and responsibilities. Processes might include:

• Having discussions with employees to determine reasonable out-of-hours contact and reviewing internal processes.
• Reviewing employment contracts and position descriptions to ensure they include expectations on employees’ availability outside of working hours and whether such availability is reflected in remuneration.
• Implementing policies to deal with issues raised by employees who wish to exercise the right to disconnect.
• Having discussions with clients and other stakeholders to ensure boundaries and expectations regarding out-of-hours contact with employees are set.

For workplaces operating in a global environment with different time zones, special consideration will be required to navigate expectations for employees to participate in out-of-hours meetings, zoom conferences, telephone calls, etc.

Employees

In exercising a right to disconnect, you might consider:

• Setting boundaries and communicating your expectations around availability clearly to your employers and colleagues.
• Taking ownership of your personal time and resisting the urge to check work communications outside of work hours.
• Turning off your work phone and email notifications outside of work hours, if it is reasonable to do so.
• Taking breaks from work during the day to relax and recharge.
• Making time for yourself and your loved ones outside of work.

Conclusion

The right to disconnect is expected to have a significant positive impact on employee well-being and mental health. By allowing workers to truly switch off from work, it enables them to rest, recharge, and engage in personal activities that contribute to their overall well-being. Whether an employee’s refusal to respond to a work-related request is unreasonable will likely play out differently across different workplaces and for different roles.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.