Starting from 26 August 2024 and thereafter, the new rules of “the right to disconnect” will take effect in Australia. The Australia Institute’s 2023 report indicated that Australian workers log an average of 280 hours of overtime annually, potentially resulting in burnout and stress. By establishing these new legislations, employees will be able to maintain healthy boundaries between work and personal life without the expectation of being accessible outside of work hours.

This means that employees have the right to refuse to monitor, read or respond to contact outside their working hours, while employers cannot punish them for doing so. This right also allows employees to refuse contact or attempted contact from a third party, which could include clients, suppliers, staff from other businesses, or members of the public. The contact could include a range of communication used to engage with employees, such as calls, emails, texts, social media and messaging devices.

Refusal must be reasonable

However, employees are not allowed to refuse contact if it would be unreasonable in doling so. In determining whether a refusal is unreasonable, a non-exhaustive list of factors will be taken into account:

The reason for the contact or attempted contact;
The method of contact or attempted contact;
The degree of disruption the contact or attempted contact causes the employee;
The extent of compensation or extra pay for the employee:
- To remain available to perform work during the period they are contacted; or
- For working additional hours outside of their normal working hours;
The employee’s role in the business and the level of responsibility; and
The employee’s personal circumstances, including family or caring responsibilities.

Other matters such as where the contact or attempted contact is required by law will also be considered.

Disagreement between employer and employee

When there is a dispute between employers and employees on what constitutes “reasonable conduct”, the relevant parties should first try to resolve it by discussing at the workplace. If they are unable to reach and agreement, they can then go to the Fair Work Commission for assistance. The Commission can assist by:

making stop orders (to stop and employee from refusing contact or to stop an employer from taking certain actions); or
otherwise deal with the dispute (which would likely include a conciliation conference or making recommendations).

Actions to take for employers

Although the new right does not prohibit employers from contacting employees outside working hours, nonetheless employers are prevented to take adverse actions against employees who refused to connect reasonably outside their work hours. Therefore, it is essential for both employers and employers to communicate clearly and talk openly with each other to ensure there is a common understanding of expectations in the workplace and the new right to abide by the new legislation so that the wellbeing of the employees is prioritized.

Verge Legal provides legal advice in all states in Australia, contact us today if you need assistance.

This blog post provides general information and is not intended as legal advice. It may not be complete or up-to-date. For specific legal advice, please consult a qualified lawyer.