Right to Disconnect

(Written by Matthew Morrison)

The Right to Disconnect laws provide employees with the right to disconnect from work outside of their ordinary working hours.  Specifically, the laws state that an employee may refuse to monitor, read, or respond to any contact or attempted contact from their employer or a work-related third party outside of their working hours, unless their refusal would be unreasonable.  These changes start on 26 August 2024 for non-small business employers (15 or more employees) and for small business employers (less than 15 employees) the change will come in at 26 August 2025.

There are certain factors that must be considered when determining whether a refusal is unreasonable, these factors are:

-         The reason for the contact or attempted contact.

-         How the contact is made and the level of disruption it causes to the employee.

-         Whether the employee is compensated or paid extra for:

o    Remaining available to work when the contact or attempted contact is made, or

o    Working additional time outside of their ordinary hours of work.

-         The employee’s role in the business and level of responsibility.

-         The personal circumstances of the employee, including family or caring responsibilities.

Other factors or matters may also be considered in each individual situation.

 Employers

A key implication is that employers must be mindful of contacting employees outside of their ordinary working hours, and this contact may be reasonably refused.  These rights of refusal are workplace rights under the Fair Work Act, which means that employers are prevented from taking adverse action against any employee who exercises or proposes to exercise their right.

Where contact outside of working hours is required, employers may need to consider appropriately compensating employees for their availability and for any additional work undertaken.  Employers may also need to review and update relevant policies, procedures, and employment contracts to align with the new laws.

Employees

Employees now have an express right to disconnect from unreasonable work communications during their personal time.  However, employees still need to meet the inherent requirements of their role.  Any refusal to respond to employer contact outside of hours should be reasonable in the circumstances.  It is important to consider the factors contained in the legislation, and above, when asserting your right to disconnect.

If the employee is covered by an enterprise agreement and the enterprise agreement includes a term or provision regarding the right to disconnect that is more favourable to the employee than the legislation, the terms of that agreement continue to apply to the employee.

Disputes under the Right to Disconnect

The Right to Disconnect is an emerging workplace right and the legislation is still to be tested in the judiciary.

For any assistance or advice on the right to disconnect or any employment law matters, please contact our offices to speak with one of our solicitors.