Many Australian employees have gained a new right: the right to disconnect outside their ordinary working hours.
The new right now applies to employees of business with 15 or more employees. Employees of smaller business will get the same right on 26 August 2025.
The right to disconnect means that employees can lawfully refuse contact, or attempted contact, outside their ordinary working hours unless that refusal is unreasonable. This means that an employee can reasonably refuse to monitor, read or respond to work-related contact from an employer or a third party.
When will it be unreasonable for an employee to disconnect? What is, and is not, unreasonable has been left undefined. Proponents of the right to disconnect argue that this is a virtue, because it allows judgements to be made in each case according to the particular circumstances of the case. Critics – and on this issue I am one of them – say that the lack of clarity will inevitably lead to disputes.
Lawyers are fond of saying that reasonableness is an objective criterion, but whenever people disagree the assessment of what is unreasonable is usually different according to each person’s perspective: the employer making contact because they have a business to run efficiently, and employees refusing contact because they want to protect their time away from work, are each acting reasonably from their point of view.
The legislation has not left the issue entirely at large. It will be unreasonable for an employee to refuse to read, monitor or respond if the contact or attempted contact is required by law.
More generally the legislation lays down a non-exhaustive list of factors that must be considered, including the reason for the contact; how the contact is made, and the level of disruption it causes the employee; whether and how the employee is compensated in some way, or paid extra, to be available to perform work at the time when the contact is made or for working additional hours outside of the employee’s ordinary hours of work; the nature of the employee’s role and the employee’s level of responsibility; and the employee’s personal circumstances, including family or caring responsibilities.
Disputes about an employee’s right to disconnect are supposed to first be discussed and resolved at the workplace level. If that does not work, then employees or employers can go to the Fair Work Commission, which has powers that include making stop orders that might require an employer to stop making contact, or employees to stop refusing it.
I regard the new right to disconnect as a profound experiment. It was appended to the Federal Government’s portmanteau Closing Loopholes legislation at the initiative of the Greens. The Senate’s Select Committee on Work and Care recommended the introduction of a right to disconnect in the Report it delivered in 2023, but without having given it the kind of exhaustive examination that one might expect of such a profound change in the regulation of work. The right was then legislated without significant debate, whether public, or in Parliament.
Other countries have recognised right to disconnect, including France, Belgium, Italy, Luxembourg, Spain, Slovakia, Argentina, Chile, Mexico, Ireland and the Philippines. But few of those countries have the same kind of universal ‘top down’ prescription that we have now adopted in Australia. France, for example, which is a pioneer in this area, flirted with the idea of a blanket ban on work emails after 6.00 pm, but now has the ‘El Khomri Law’, which requires employers to draw up a ‘charter of good conduct’ to regulate out of hours contact in consultation with their employees.
The El Khomri Law recognises but does not define the right, allowing companies to choose the most practical ways to implement the right taking into consideration the nature of the business. This ‘bottom up’ approach allows employers and employees to negotiate arrangements that best suit them. That is inherently more likely to produce workable, and therefore effective, arrangements than the approach we have now taken in Australia.
Few would resist that idea that, as a society, we needed to do something considered to address the creeping encroachment on ‘not working’ time that so many employees have experienced since the pandemic revolutionised the way in which work is organised and performed. Technology has detached work from its formerly essential temporal and physical dimensions, because many employees can now work collectively notwithstanding that they are working at different times and places.
That has brought with it flexibility that can benefit employers and employees, but it has also produced ‘the autonomy paradox’, by which greater flexibility for individuals diminishes freedom for all of us to switch off. Many studies have shown the psychosocial problems that can produce. But is our new, top down and prescriptive right to disconnect the best remedy? Now, time will tell.
Ian Neil SC is a leading employment and industrial law barrister.