From 26 August 2024 (or 26 August 2025 for small businesses), employees will have a ‘right to disconnect’ from their workplace.

What is the ‘right to disconnect’?

The new right provides employees with the ability to refuse to monitor, read, or respond to contact (or attempted contact) from their employer or a third party outside of their working hours, unless the refusal is unreasonable.

Whether the contact is unreasonable will depend on a range of circumstances specific to the working relationship, including:

  • the reason for the contact or attempted contact;
  • how the contact is made and the level of disruption it causes the employee;
  • the extent to which an employee’s remuneration (monetary and non-monetary) compensates them to remain available to perform work during the period in which the contact is made or work additional hours outside their ordinary hours of work;
  • the nature of the employee’s role and their level of responsibility; and
  • their personal circumstances (including family or caring responsibilities).

The right to disconnect will become a workplace right and will mean that an employer cannot take adverse action against an employee reasonably refusing contact outside ordinary working hours.

Any disputes about the application of the right to disconnect should be dealt with at a workplace level in the first instance between the employer and employee. If a dispute cannot be resolved at a workplace level, either party may apply to the Fair Work Commission. In dealing with the dispute, the Fair Work Commission may make orders to:

  • prevent an employee from unreasonably refusing contact with their employer
  • prevent an employer from contacting an employee outside of work hours
  • prevent an employer from taking disciplinary action against an employee as a result of the employee refusing contact outside of their normal working hours.

Key messages for employers

  • The right to disconnect does not mean that employers must stop contactingemployees outside of work hours. Rather, that employees don’t have to monitor, read or respond to the contact, unless the refusal would be unreasonable.
  • Regardless of the new right, employers should be mindful that they have an obligation under occupational health and safety laws to provide a safe working environment for their employees. Employers should give consideration to OHS risks that could arise from requiring employees to monitor, read or respond to out of office contact.
  • The application of the right to disconnect will turn on individual employee circumstances – what is unreasonable contact for one employee may not be unreasonable contact for another.
  • Employers will need to give consideration to whether their operations may be impacted by the right to disconnect and the need to manage their clients and stakeholders as a result.

How can Justitia help?

If your organisation has concerns about the impact the right to disconnect will have on your operations, it is important to seek advice now before the 26 August start date.

The team at Justitia has developed a checklist to assist employers prepare for the right to disconnect.  Please contact us on (03) 86214500, or info@justitia.com.au for more information to speak with one of our lawyers.