New Legislation: What you need to know about ‘Your Right to Disconnect’

With the developments in technology, disconnecting and switching off is becoming increasingly difficult, whether from work or our personal lives. However, newly introduced legislation, which comes into effect on 26 August 2024 and 26 August 2025 for non-small businesses and small businesses, respectively (Introductory Dates), now gives employees the right to disconnect.

What is the Right to Disconnect?

Employees eligible to disconnect will have a right to refuse contact outside of their standard working hours, except where refusing is unreasonable. From the above Introductory Dates, an employee will have a right to decline to monitor, read or respond to any attempt (i.e. emails, text messages and phone calls) at contact outside of their normal working hours. The right to disconnect will be relevant to both employers and other parties within workplaces attempting to make work-related contact outside of normal working hours.

Key Factors to Consider

The legislative changes do not create a complete ban on contacting workers outside of their ordinary hours.

When determining whether an employee can reasonably refuse contact, there are several factors to consider. Whilst not extensive, some factors include:

• what is the reason for the necessary contact;
• is the employee being compensated accordingly for the contact (for example, are they being paid “overtime” or additional pay for answering the relevant communication), over award payments can be satisfactory for this purpose;
• the level of disruption occurring;
• the nature and seniority of the employee’s role and responsibilities; and
• the individual circumstances of the employee outside of work (for example, caring responsibilities).

To implement these changes, the Fair Work Act 2009 will be updated, and each industry award will be revised to include a definition of the term “right to disconnect.”

Resolving Disputes

Where a dispute may arise from a breach of the “right to disconnect”, these should be resolved as follows:

• An internal discussion: An attempt to resolve the dispute between employee and employer by having a conversation, meeting (and other relevant party making contact, if necessary); and
• An application to the Fair Work Commission (Fair Work): When internal processes fail, either an employee or an employer, can make an application to the Fair Work. Fair Work can then, depending on the dispute at hand, make an order to stop or hold a conference with the parties to resolve the issue collaboratively.

Furthermore, where Fair Work makes an order to stop, this can benefit either the employee or the employer. The employee may be ordered to stop reasonable refusal of the relevant contact, whereas the employer may be ordered to stop making the contact or expecting the contact will be dealt with accordingly.

Where an employee feels they have been unfairly treated because of a refusal to communicate outside of working hours (i.e. by being dismissed), they can make an application to Fair Work.

Need more help? Reach out to Morrows Legal Solutions

This is an ever-evolving area of law, with legislative changes occurring rapidly. If you need further advice, please contact Morrows Legal Solutions. Our employment lawyers will be happy to help.