The Right to Disconnect: Protecting Employees’ Work-Life Balance

Introduction

In today’s hyper-connected world, the boundaries between work and personal life are increasingly blurred. With the growing use of phones, emails and instant messaging in the workplace, particularly after the pandemic, it is must easier to reach and stay connected with your employees.

However, these blurring lines have also led to increased burnout, stress and an overall imbalance in employee’s work and personal life. While many individual companies have addressed these issues internally, the Australian government has recently enacted legislation to expressly include the right for all Australian workers to disconnect from work.

This article will explore what exactly is the “right to disconnect” and the new obligations this legislation imposes on employers.

The Right to Disconnect

The right to disconnect is one of the new reforms being implemented into Australian employment law through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth). The right is also being incorporated into modern awards and will come into force on 26 August 2024, although small businesses will have until 26 August 2026 to comply.

This reform grants employees the right to ignore unreasonable attempts by their employers or any work-related third party to contact them outside of work hours unless their refusal is deemed unreasonable.

This does not mean that employers cannot send emails or messages outside of work hours, but rather that employees are under no obligation to respond or face any penalty for them choosing not to do so.

What is an Unreasonable Refusal?

An employee may only exercise this workplace right in circumstances where their refusal to monitor, read or respond to communication is unreasonable.

In some cases, a refusal to respond to legally required contact is considered unreasonable. Additionally, there are other circumstances where an employee’s disconnect is considered unreasonable and the following matters will be considered in determining this:

1. The reason for the contact (or attempted contact);
2. How the contact (or attempted contact) is made and how much disruption is caused to the employee;
3. Any compensation (monetary or non-monetary) the employee receives to be available to work when the contact is made and/or to work outside of their ordinary hours;
4. The employee’s role and level of responsibility; and
5. The employee’s personal circumstances, including family or caring responsibilities.

This is not an exhaustive list but it does highlight the type of issues that can be considered.

Examples of where a refusal may be considered unreasonable are in professions or roles that require you to be contactable at certain times, such as a doctor on call. Comparatively, retail employees who work 9am-5pm are likely able to reasonably refuse contact from their employer outside of hours.

Employer Considerations

As an employer, it is sometimes necessary to send emails or messages outside of work hours and this new reform does recognise that.

However, employers must be cautious of how they go about contacting employees outside of hours and how they deal with employees who choose to exercise this workplace right.

One consideration for employers is how they contact employees outside of hours. It is far easier for employees to exercise their workplace right to disconnect when they receive a message or email in comparison to a phone call. A potential option for employers is to prepare new workplace policies on expectations around workplace communications and communications outside of work hours to make all employees aware of their rights and circumstances where they may be reasonably expected to respond to communications.

Importantly, this legislation establishes a workplace right and as such, employees cannot be punished or face adverse action for exercising the right to disconnect.

Penalties

If an employer breaches the right to disconnect or take adverse action against an employee, the employee can make an application to the Fair Work Commission to deal with the dispute. However, it is recommended that the dispute first be discussed at the workplace level.

Depending on the nature of the dispute and application made with the Fair Work Commission, the Commission can make a stop order preventing any unreasonable contact outside of work hours or deal with the dispute in another manner, such as by holding a conference to try and resolve the matter.

Conclusion

The right to disconnect aims to address the increasingly blurred lines between work and personal life to provide employees with a better work-life balance. It is essential that both employees and employers understand their rights in relation to this reform.

Employment

Understanding your entitlements when your employment is terminated

Are you worried that you may lose your entitlements after your employment has been terminated? Although losing your job or being terminated can be stressful and can happen for various reasons, you should be aware of the type of entitlements you may be owed. You can usually find out by...

Read more

Employment

Managing confidential employee records – duties as an employer

As an employer, you owe your employees a number of different obligations. One such obligation is in relation to any personal information they have disclosed to you. It is important to understand these obligations to ensure that you are actively complying with your duties as an employer. owe your employees...

Read more