With the ‘right to disconnect’ coming into effect on 26 August 2024 (and 26 August 2025 for small businesses), it’s necessary for employers to understand their obligations and prepare for employees to exercise this new workplace right.

Understanding the Right to Disconnect

The right to disconnect is a new workplace right applicable to all employees. In summary, employees will have the right to refuse contact outside their working hours unless that refusal is unreasonable. This means an employee can refuse to monitor, read or respond to contact from an employer or a third party, such as a client.

The right to disconnect is not unique to Australia. Countries like France, Italy, and Spain have already implemented similar laws. The rise of remote work and digital communication tools has blurred the lines between work and personal life. The right to disconnect is a response to these changes, aiming to establish boundaries between work and personal time.

This right is solely at the discretion of the employee. If an employee chooses not to engage with work-related communications outside of working hours, and it is reasonable for them to do so, the employer must not take any adverse action against them.

When Is It Unreasonable for an Employee to Exercise their Right to Disconnect?

While there is still limited guidance on what constitutes an ‘unreasonable’ refusal to engage in work-related contact outside of working hours, the Fair Work Commission (FWC) will consider several factors when disputes arise, including:

The reason for the contact.
Whether the employee is compensated or paid extra for being available outside of normal hours.
The nature of the employee’s role and responsibilities.
The employee’s personal circumstances, such as family or caregiving duties.

The FWC is expected to provide more clarity once it has observed how the right to disconnect functions in practice and as relevant cases emerge. A draft clause on the right to disconnect, which will be included in all Modern Awards, is scheduled to be released on 23 August 2024. Importantly, the workplace right applies to all employees, not just those covered by a Modern Award.

Disputes regarding the exercise of the right to disconnect can be referred to the FWC for resolution. Additionally, employees who face adverse action for exercising this right may file a claim under the General Protections regime, which safeguards all workplace rights.

Steps Employers Should Take Before 26 August 2024

To prepare for the implementation of the right to disconnect, we recommend that employers:

Educate managers about the right to disconnect and how it applies within your organisation. Training programs can help avoid adverse actions that could arise from an employee exercising this workplace right.
Identify if and why employees are being contacted outside of their working hours. Assess whether this contact is operationally essential or simply convenient for the person initiating it.
If out-of-hours contact is not essential, consult with the affected employees to explore alternative arrangements.
Ensure that employees expected to engage in out-of-hours contact are appropriately compensated. This could include a salary that accounts for out-of-hours work or specific allowances for being on call.
Discuss and agree with employees on expectations regarding out-of-hours work. Document these expectations in position descriptions and employment agreements where necessary.
Begin an ongoing consultation process to address the right to disconnect, as both business needs and personal circumstances may evolve over time.

In conclusion, the introduction of the workplace right to disconnect should not pose a significant detriment to most employers. Instead, it offers an opportunity to foster a healthier work environment by engaging in open and transparent consultation with employees to understand what is reasonable and unreasonable, considering each employee's personal circumstances. This also aligns with global trends towards enhancing work-life balance and employee well-being. This is not a one-time discussion, however, as both business needs and personal circumstances are likely to evolve. Therefore, it is essential to initiate and maintain an ongoing consultation process from now on.

Jasmine O’Brien
Principal
T +61 3 9611 0149
jobrien@sladen.com.au

Matthew Davis
Lawyer
T +61 3 9611 0173
mdavis@sladen.com.au