From Monday, the Right to Disconnect comes into effect in Australia. It gives employees the power to not respond to out-of-hours contact from their employer without suffering consequences.

What does the law cover and how will it be enforced? Does it mean employers can’t contact staff after hours? And what can workers do if their boss calls them at 8pm?

We delve into legislation and speak to workplace lawyers and other experts about how the Right to Disconnect will work in Australia.

A new workplace right

The Right to Disconnect was passed by Parliament in February and must be included in awards for employees at companies with more than 15 workers from Monday.

It will be law for smaller businesses with less than 15 employees a year later.

According to the Act, it is about “generally allowing an employee to refuse contact or attempted contact from their employer outside the employee’s working hours”.

The new law prevents an employee from being punished in any way for not responding to “unreasonable” work communications outside of their paid working hours.

Unlike similar laws in other countries, it does not prevent bosses from contacting their workers outside of working hours, but rather allows workers to not respond to these communications.

This is an important distinction to note for Australian employers, according to K&L Gates partner Dominic Fleeton.

“I get the feeling that some employers might think that if they happen to send an email to an employee at 8pm that might itself fall foul of the law – that’s certainly not the case,” Fleeton told Information Age.

“These provisions don’t stop, prevent or make it unlawful for an employer to make contact with employees out of hours.

“The onus rests with the employee to indicate whether they think it is reasonable for them to refuse to monitor, acknowledge or respond to that contact.”

According to the legislation, the modern award must now allow an employee to “refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours”, unless this refusal to do so is deemed to be “unreasonable”.

This communication can be in the form of emails, calls, texts or messages from any other work-related messaging platforms.

The reasonableness test

When determining whether this refusal is “unreasonable”, the legislation outlines factors to be taken into account, including the reason for the contact, how the contact was made and the level of disruption it caused, the extent to which the employee is compensated for working additional hours, the nature of the employee’s role, and their personal circumstances.

Rulings over the “reasonableness” of an employee refusing to respond to work communications out of hours will ultimately be determined by the Fair Work Commission (FWC).

This means that an employer will still be able to contact a worker about a tech outage or cyber attack and expect them to reply, for example, as this would likely be seen as “reasonable” contact.

If there is a dispute between an employee and their employer over the right to disconnect, the two parties must at first attempt to resolve this at the workplace level.

If this cannot be done, one of the parties can then apply for the FWC to make a ruling for the employee to stop refusing contact or to fine the employer for making this contact if it is unreasonable.

The FWC can also dismiss an application if it finds it to be frivolous or vexatious, or if the matter involves the defence or national security sectors.

The Commission will be required to begin dealing with a right to disconnect application within 14 days, and to finalise it as “soon as reasonably practicable”.

Fleeton said he expects many of these disputes to be resolved at the conciliation phase with the help of the FWC.

“I fully expect that when a right to disconnect dispute is filed with the Commission, the Commission will take various steps including listing the matter for conciliation to try to get the parties to reach an agreed outcome rather than having to force an outcome upon them,” he said.

“This is not the sort of regime where there’s a one-size-fits-all approach that can be adopted. It depends on the employee’s role, the requirements of those roles, how they are remunerated, and what they’re being asked to do.”

The initial FWC order relating to the right disconnect will not have any penalties attached to it, but breaching such an order could lead to a fine of up to $18,000.

“The FWC orders will not result in compensation or penalties being awarded – it’s really a dispute resolution at that stage,” Hopgood Ganim Lawyers special counsel, workplace and employment, Adele Garnett told Information Age.

“It is a new workplace right so that means you can’t take adverse action against an employee for exercising that right.

“You can’t discipline them, you can’t dismiss them, you can’t bully them.”

Criticism from business groups

Legislation introducing the right to disconnect was passed by Parliament earlier this year after extensive debate and controversy.

Similar laws are already in place in other nations such as France, Italy and Ireland, and were recommended by an Australian Senate Committee early last year.

During the Parliamentary debate, business groups expressed concerns with the new powers and how they would work in practice, and Opposition leader Peter Dutton has pledged to repeal the Right to Disconnect law if he wins the next election.

Despite criticism from the business community, an Australia Institute survey from 2022 found that 85 per cent of Australian workers supported such a power, and just 8 per cent outright opposed it.

What Aussie businesses should do now

The Right to Disconnect legislation will be reviewed by the federal government within two years, and will look at whether it has been appropriate and effective, and if there have been any unintended consequences associated with it.

Garnett said Australian employers should review their practices and work out where and when it may be required to contact workers outside of their paid hours.

“The first thing to do is to consult and analyse your workforce, and look at where there is often a requirement to contact employees outside of their hours, and talk to them about what they think is reasonable – that’s really important to do,” she said.

“Do we actually need to contact them, and is there a way to avoid contacting them outside of working hours?”

Companies should also review their employment contracts and job descriptions to ensure it is made clear if out of hours contact will be required, Garnett said.

Australian businesses should be looking at their employees who may not currently be remunerated for working outside of their hours, Fleeton said.

“If you’ve got a group who are paid by the hour and who aren’t going to receive any additional remuneration for having to respond to a phone call at 8pm, for example, I’d be looking at that and determining whether those practices could be maintained if an employee seeks to invoke their right to disconnect,” he said.

“If you have done that work, and engaged in that communication exercise at the start, then you’ll be in a stronger position if they turn around and say that is unreasonable because, from the outset, you’ve been very clear about the expectations and requirements.”