The Right to Disconnect Law

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 received Royal Assent on 26 February 2024. By 26th August 2024 the Right to Disconnect law for eligible employees will be codified within the Fair Work Act 2009 for non-small business employers and by 26th August 2025 for small business employers.

This means that outside of work hours, employees will have the right to refuse contact unless that refusal is unreasonable. An employee can refuse to monitor, read or respond to contact from their employer, including attempted contact.

 

Here are some key points as per The Fair Work’s website:

  • Several factors must be considered when determining whether an employee’s refusal to accept contact outside of work hours is unreasonable. {Head to the Fair Work website for further information}
  • Disputes over an employee’s right to disconnect should attempt to be resolved internally at the workplace level before seeking assistance from the Fair Work Commission.
  • The right to disconnect will also be a workplace right under general protection laws. These laws are protected rights all employees receive under the Fair Work Act.
  • All awards will be required to include a ‘right to disconnect term’ by 26 August 2024. This means that specific rules will be added to awards to explain how this new right would apply to different industries and occupations. For more information on the changes to awards, head here.

For more information, head to Fair Work here.

How Can Employers Prepare

It’s crucial that employers begin to prepare themselves accordingly for the upcoming changes. Consider the following:

  • Review employment contracts as per the relevant awards.
  • Provide staff training to understand the upcoming changes
  • Review all internal policies, procedures and handbooks to ensure they follow the law correctly
  • Seek advice and guidance from external professionals such as a lawyer or HR expert

 

The Right to Disconnect Recently Tested in Australia

An Australian employer has been ordered to pay 10 months’ backpay and ongoing workers’ compensation to an employee after a supervisor tried to contact her numerous times while she was on sick leave.

The Australian Financial Review this week reported the supervisor made at least seven calls to the employee’s personal mobile phone and several contacts to her personal email while she was off sick for four days.

The NSW Personal Injury Commission invoked the upcoming right to disconnect laws to support a finding that “an employer’s persistent contact of an employee during sick leave was unreasonable and made them liable for workers’ compensation payments” and labelled the supervisor’s contact as “hostile”, “excessive and inappropriately done”, the AFR reported.

The employee said she felt harassed and bullied, and suffered anxiety which left her incapable of working for 18 months.

Read more from the AFR here.

 

The Right to Disconnect Law Around the World

A number of countries across the world have implemented the Right to Disconnect workplace laws. Ius Laboris, global HR lawyers, share an interactive map on their website showing countries that have implemented the right to disconnect.

Check it out here.

In 2019 we shared how France had introduced a “Right to Disconnect” law that states a company with 50 or more employees, cannot contact an employee after work hours.

Benoit Hamon from the French National Assembly was quoted at the time as saying, “all the studies show there is far more work related stress today than there used to be, and that the stress is constant. Employees physically leave the office but they do not leave their work. They remain attached by a kind of electronic leash – like a dog. The texts, the messages, the emails – they colonise the life of the individual to the point where he or she eventually breaks down.”

The law at the time didn’t stipulate any penalties if a business violated the amendment. It was set out as a moral responsibility for each business to establish “charters of good conduct” that specify the times employees can’t be contacted.