The right to disconnect law came into force on the 26th of August 2024 through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (for non-small business; for small businesses it’s 2025).[1] This provision tackles Australia’s widespread issue of employees working unpaid overtime and helps clarify the boundaries between professional and personal life.[2]
This article covers the enforcement of the ‘Right to Disconnect’ and its impact on employees and employers.
Defining the ‘Right to Disconnect’:
The right to disconnect involves an employee’s right to disengage in work-place communications outside of working hours. Therefore, employees aren’t required to answer work emails, calls, or texts after hours, unless refusal is unreasonable[3]
Overview of the New Law:
The new provision considers the right to disconnect as a workplace right under Part 3-1 of the Fair Work Act 2009 (Cth).[4] This change protects employees from unreasonable overtime and adverse actions for disengaging from work communications after hours.
With this provision, the Fair Work Commission can issue orders in disputes related to one’s right to disengage. If discussions with the employer do not resolve the issue, an employee can seek the Fair Work Commission to issue orders preventing the employer from imposing penalties for exercising the right to disconnect.[5] Conversely, an employer may request the Fair Work Commission to determine whether an employee is obligated to respond to work-related communications. [6]
Failure to comply with such orders would amount to a penalty under s 333Q Fair Work Act 2009 (Cth) (a fine).[7] Furthermore, under s 675 a breach of such orders could also amount to a criminal penalty as well.[8]
Consequently, this legislative scheme aims to provide a structured approach to handling disconnect disputes by ensuring that communications outside regular hours happen only when necessary. It offers a balanced framework for managing work-related interactions despite potentially penalising employers who seek assistance after hours (could be criminally liable).
What is Deemed Unreasonable?
Employees can exercise their right to disengage only if they find engaging with the employer unreasonable. Under the new amendments, this includes considerations of the following:
- The reasoning behind the employer’s/third parties’ contacts with the employee.
- The communication method and the level of disruption it causes the employee, including attempts to communicate, are considered
- The level of compensation made if the employee works overtime or must remain on standby.
- The employee’s role and responsibilities in the company.
- The employee’s personal commitments.[9]
Challenges and Considerations Ahead:
Does The right to disconnect Change Anything?
While the new provision seeks to improve the issues associated with working overtime, s 62 of the Fair Work Act 2009 (Cth) already provides a similar mechanism addressing this.[10]
Under s 62, an employer cannot request or require an employee to work overtime unless its reasonable to do so.[11] The factors which are considered for determining reasonableness include the industry requirements of the employer, the notice provided, and the employee’s circumstances.[12]
The new provision takes some inspiration from s 62 but doesn’t really do anything different. Calls, messages, and emails are already part of one’s workload and may be covered under s 62.
Despite this, employers have rarely enforced s 62, and many argue that unpaid work remains an issue since the Fair Work Act’s inception[13]. The new provision might clarify the rules for remote work, but we still need to determine its effectiveness. For example, will the imposition of criminal penalties under s 675 be enough of a deterrent for employers to not contact workers after hours?
RIGHT TO DISCONNECT: Impact on Workplace Flexibility:
Imposing a right to disconnect could undermine flexibility for those who don’t have fixed hours, potentially reducing their autonomy by enforcing specific time arrangements. [14] While this concern is valid, the provision seeks ensuring employees have a set number of working hours and proper rest.[15] Implemented correctly, it can support flexible work schedules, provided there is clear agreement on availability and boundaries. Without this right, employers might demand more work, extending hours and invading personal time [16]
Conclusion:
The right to disconnect under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) seeks to be a significant step in enhancing work-life balance. It addresses issues with unpaid overtime and clarifies boundaries between professional and personal life.[17] While it aims to protect employees from unreasonable work demands outside regular hours, its effectiveness depends on how it is implemented and enforced. Balancing flexibility with the right to disengage will be crucial to ensuring that employees can maintain their autonomy while enjoying clear boundaries for personal time.
Disclaimer:
This article is not legal advice and serves the purpose of providing generalised legal information. If you require qualified legal advice, our experienced team of solicitors at Jake McKinley are here assist. Please get in touch with us here
[1] See commencement section of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.
[2] Katie Miller, ‘Right to Disconnect: Will it work? And what does it mean?’, UNSW Sydney Newsroom (Blog Post, 2 April 2024) < https://www.unsw.edu.au/newsroom/news/2024/03/right-to-disconnect–will-it-work–and-what-does-it-mean—>.
[3] Fair Work Ombudsman, ‘right to disconnect’, Workplace laws (Web Page, 12 April 2024) < https://www.fairwork.gov.au/about-us/workplace-laws/legislation-changes/closing-loopholes/right-to-disconnect>.
[4] Fair Work Act 2009 (Cth) Pt 3-1; Fair Work Legislation Amendment (Closing Loopholes No. 2) Act (n 1) s 333M (4).
[5] Ibid s 333P.
[6] Ibid.
[7] Fair Work Act (n 1) s 333Q.
[8] Ibid s 675.
[9] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act (n 1) s 333M(3).
[10] Fair Work Act (n 2) s 62.
[11] Ibid sub- s (1).
[12] Ibid sub -s (3).
[13] Amy Dale, ‘Do we deserve the right to disconnect?’ LSJ Online (Blog Post, 2August 2021) < https://lsj.com.au/articles/right-to-disconnect/#:~:text=Although%20compliance%20has%20often%20suffered%20due%20to%20lack%20of%20enforcement%2C>.
[14] Samantha Hutchinson, ‘Disconnect laws will harm flexibility, productivity: AFR readers’, AFR Real Poll (Blog Post, 19 February 2024) < https://www.afr.com/politics/disconnect-laws-will-harm-flexibility-productivity-afr-readers-20240218-p5f5tj>.
[15] Australian Public Services Commission, Guidance on the Right to Disconnect in the Public Sector (Report, 2024) 5 – 9.
[16] Samantha Hutchinson (n1).
[17] Katie Miller (n 2).
