Australian Employees Given New Right to Disconnect

The Closing Loopholes Bill No. 2, which includes the new Greens-proposed laws giving employees a “right to disconnect”, passed parliament on 12 February 2024 and is currently awaiting royal assent. This new right will commence six months after royal assent. 

This legislation gives employees the right to ignore late night calls from the boss (in certain circumstances) and changes the way many employers and employees will need to approach communicating outside of ordinary work hours. The laws have been met with opposition from the business community and the Coalition has already foreshadowed that it would seek to overturn the laws if elected. Businesses will need to consider how the introduction of this new right impacts their current operations and processes to reduce the risk of it being used inappropriately. 

Right to Disconnect

Under the new right to disconnect legislation an employee may refuse to monitor, read or respond to contact (or attempted contact) from their employer or a third party outside of their working hours, unless the refusal is unreasonable. It will be unreasonable to refuse contact if this is required under a law of the Commonwealth, State or Territory. Otherwise, whether the refusal is unreasonable will depend on a range of circumstances specific to the working relationship, including: 

• the reason for the contact or attempted contact; 
• how the contact is made and the level of disruption it causes the employee;
• the extent to which an employee’s remuneration compensates them to remain available to perform work during the period in which the contact is made or work additional hours outside their ordinary hours of work;
• the nature of the employee’s role and their level of responsibility; and 
• their personal circumstances (including family or caring responsibilities). 

Small business employers will be exempt from these provisions for 12 months following the commencement of the new laws. Exemptions also apply for matters that might involve Australia’s defence, national security or an operation of the Australian Federal Police. 

The new right does not stop employers from sending emails to employees outside of work hours. However, it will form one of the “protected attributes” for the purposes of the General Protections regime in the Fair Work Act 2009 (Cth) (FW Act) and seeks to protect employees who choose to ignore attempts by their employers to contact them after hours (where this is not unreasonable) from being subjected to detriment (e.g. being disciplined for their performance).

Disputes and Stop Orders

If employers and employees cannot resolve a dispute about the right to disconnect at the workplace level, then they are able to apply to the Fair Work Commission (FWC) for a “Stop Order”. This is likely to operate in a similar manner to the current anti-bullying jurisdiction of the FWC. For employees, this will mean they are able to apply for an order that their employer stop making unreasonable contact with them (and be prevented from taking disciplinary action against them for their reasonable refusal). Conversely, employers will have the ability to apply for an order that an employee stop continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact from their employer. 

Breaching a “Stop Order” in relation to the right to disconnect may attract civil penalties under the FW Act. The Government introduced a further Bill on 15 February 2024 to confirm that such breaches will not attract criminal penalties.

What should employers do?

This new legislation may seem overly prescriptive, placing further unnecessary regulation on workplaces. However, it should be manageable with the right approach and processes in place. In some ways, the laws act as an extension of the obligations businesses already have to ensure the psychosocial safety of their workers. Similar “disconnection” rights already exist internationally in countries such as Spain and France. Our experience in these jurisdictions shows that with the right consideration, documentation and workplace training, the risks and practical impact on businesses can be limited.

Employers should start to consider how they can update their existing work practices and policies and provide training to managers on the new right. Employers will need to continue to ensure performance management processes are managed carefully, taking into account the new right. 

Further information about the reforms and their impact on employers can be found in our summary of the Closing Loopholes Bill No. 2.