Right to disconnect and employers

Australia’s ‘Right to Disconnect’ legislation has come into effect. Employees can choose to ignore communications after hours, without fear of being punished.

The Bill is designed to regulate and set limits on out-of-hours communication between you, as an employer, and your employees. Importantly, this includes communication with other stakeholders involved in executing workplace matters like clients, customers and suppliers.

This week’s expert article focuses on issues employers may want to consider with the new right-to-disconnect laws.

What is the ‘right to disconnect’?

The right to disconnect means that employees can ‘refuse to monitor, read or respond to contact, or attempted contact from your employer or related parties outside of work hours, unless it’s reasonable to do so.’

The right will be explicitly recognised under the Commonwealth’s Fair Work Act 2009.

Is the right to disconnect legislation just for government departments?

The legislation does not just apply to government departments. It applies to all workplaces in Australia with over 15 employees (public, private and not-for-profit). Having said that, smaller businesses can choose to comply even though they’re not required to do so.

An employee’s right to disconnect applies from:

• 26 August 2024 for non-small business employers and their employees
• 26 August 2025 for small business employers and their employees.

Do I need a policy?

A policy and backup procedures and processes are essential to support this new legislation. Be precise, define terms, and clarify what is and isn’t expected.

You might want to meet with your team first to brainstorm issues and uncover confusion, so these can be woven into any policy you develop.

How do I communicate the new legislation?

Once you have a policy, communicate its existence and provide training to employees to ensure the fundamentals are right. Also consider:

• incorporating the policy as an agenda item into weekly meetings after it’s launched to test understanding and clarify unclear matters
• work through scenarios to build understanding
• inform staff where the policy is kept so they can easily find it
• build education and training into induction for new employees
• hold refresher sessions to keep the policy front of mind
• explain to employees how to seek clarification if needed.

What does ‘unless it’s reasonable to do so’ mean?

Defining terms, including ‘unless it’s reasonable to do so’ will help align your understanding with employee understanding.

The legislation encourages employers and employees to think about a range of factors when determining if the refusal is unreasonable. The list in the ‘Right to Disconnect Bill’ is not exhaustive but it gives examples of what you can consider. Here are 3 quick examples and our interpretation of what they mean.

The reason for the contact or attempted contact

Think about whether the reason for contact is minor or major.

If you, as a boss, call an employee to ask a non-urgent question about a project not due for several more months, then this might not be reasonable. Why? You could have waited until the next working day to seek an answer.

If, however, your organisation is facing an unexpected, serious matter that could affect a tight and immovable deadline, then it might be reasonable for you to contact an employee.

Another case is if the employee’s role requires them to be on call for emergency outages in workplace operations. If this is the case, then the employee needs to understand that contact after hours is likely reasonable.

The nature of your role and level of responsibility

One factor to think about is whether the employee is junior or senior. Another is whether the employee is in a support role or a decision-making role.

The method of contact and the level of disruption it can cause

As an employer think through the level of disruption your contact could cause. For example, do you need to contact an employee you know is picking up the kids from school and scrambling to get home to get the family fed? This might be disruptive, especially if you could have called later.

Sending emails late at night, or during the night—especially those that could have waited until the morning—likely represents an unnecessary level of disruption.

What does contact from ‘related parties’ mean?

The right to disconnect includes ‘related parties’. Examples include external consultants or contractors working on a project with employees. Other examples are clients, customers, suppliers, or other stakeholders involved in executing workplace matters.

You may want to communicate your policy and related details to these stakeholders to build understanding.

What happens if an employee doesn’t agree with what you believe is ‘reasonable contact’?

It might be that you and an employee have different views on what defines ‘reasonable contact’. If this is the case, a helpful start could be to explain what dispute resolution processes are available to the employee.

Does this legislation mean you can’t contact employees after hours?

The legislation doesn’t stop you from contacting employees after hours. However, you can’t penalise an employee if they exercise their right to ignore the contact.

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