From 26 August 2024, Australians working at organisations with more than 15 employees will have the legal right to ignore all work communications out of working hours when deemed reasonable.
Under the Fair Work Amendment (Right to Disconnect) Act 2023, employees of organisations with 15 or less employees will also be able to disconnect after work from 26 August 2025 if it is considered reasonable.
The term “reasonable” is not defined in the right to disconnect legislation and the Fair Work Commission (FWC) is yet to issue any determination in relation to this matter.
Macquarie Dictionary defines “reasonable” as endowed with reason, agreeable to reason or sound judgement, not exceeding the limit prescribed by reason and moderate or moderate in price. This definition might be acceptable to determine circumstances where right to disconnect is reasonable.
What does right to disconnect mean?
The right to disconnect means that outside their working hours, employees can refuse to monitor, read or respond to contact or attempted contact from their employer, or another person if the contact is work-related including work-related contact from clients or members of the public.
Will the law end contact out of working hours?
No. The right to disconnect law will not restrict employers/managers from contacting employees whenever they wish. But it does give employees the right to refuse work-related communications (emails, phone calls, text messages etc.) outside work hours unless that refusal is deemed unreasonable.
Defining unreasonable refusal
If required by law such as contacts with on call medical professionals in treatment situations, an employee’s refusal to monitor, read or respond to contact or attempted contact will be unreasonable.
If not required by law, the following factors are considered when deciding if disconnection by an employee is unreasonable: the reason for contact; how the contact is made; how much disruption the contact causes the employee; any compensation the employee receives to be available to work when the contact is made or to work outside their ordinary hours; the employee’s role & their level of responsibility and the employee’s personal circumstances, including family and/or caring responsibilities.
Penalty for non-compliance
If an employee raises concerns to FWC regarding an employer’s continuous contact out of work hours, the employer could receive a fine of $18,000.
Dispute resolution
At the first instance, the legislation requires that a dispute about an employee’s right to disconnect should be discussed and resolved at the workplace level. If that is not achieved or achievable, employees or employers may lodge a report to the FWC to deal with a dispute.
Concluding remarks
Several countries in the world have adopted right to disconnect laws in the last decade. France is the pioneer in this space, enacting such laws in 2016. Other countries include Belgium, Italy, Luxembourg, Spain, Slovakia, Argentina, Chile, Mexico, Ireland and the Philippines.
Details around reasonableness and right to disconnect are yet to be worked out. The industries are grappling with these uncertainties which will depend on individual circumstances of employees. Future “test cases” will provide clarity in the implementation of this new law.
The right to disconnect law creates a brand-new right and an opportunity to take control over private life of Australian employees. This law could pave the way for employees to claim compensation for unpaid overtime, significantly impacting sectors where after-hours work is common.
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