From August 26 employees will have the right to disconnect from work. But it’s not that simple, says industrial lawyer RICHARD CALVER.

Relations at work are becoming increasingly fraught, epitomised by a new worker right that commences for non-small business employees on August 26.

From then, employees will be able to refuse to monitor, read or respond to contact or attempted contact outside their working hours, unless their refusal is unreasonable. 

For small businesses (fewer than 15 employees) they have a year to get ready: the new right applies to their employees from August 26 2025.

This right forms part of the extensive workplace relations shake up introduced by the Albanese government’s Closing Loopholes legislative package that contains a plethora of fundamental changes to employment law. 

However, the creation of the right to disconnect was first proposed on March 20 2023 by Adam Bandt, leader of the Greens, in a Bill that didn’t proceed, the Fair Work Amendment (Right to Disconnect) Bill 2023. In the negotiations to get the Loopholes legislation through, the right to disconnect appears to be one of the requirements for the Greens’ support. 

Under the Closing the Loopholes legislation, the Fair Work Commission is required to insert a right to disconnect term into all modern awards (the second layer of the workplace relations safety net) by August 26. The Commission is also required to make written guidelines about how the right to disconnect will operate, but has said that it will wait for disputes to arise before it publishes these guidelines. 

Importantly, under the Fair Work Act 2009, the right to disconnect is considered a “workplace right”. This means employers will be prevented from taking adverse action against an employee who exercises their right to disconnect. 

Adverse action includes dismissing an employee. But so is altering the position of the employee as a result of them exercising or proposing to exercise a workplace right. 

Ultimately, such employer action could give rise to a general protections claim. But it is likely that the Fair Work Commission will be able to clarify the nitty gritty of reasonable or unreasonable refusal as it’s been given the power to make an order, for example, to prevent employers from taking disciplinary action against employees for exercising their right to disconnect. 

It could also, on application, make an order preventing the employee from unreasonably refusing contact.

The government department responsible for administering the workplace laws has published a fact sheet on this new right. It says that the right does not prohibit employers from contacting their employees. It also doesn’t prevent employees from contacting one another. 

Instead, an employee will be able to refuse to monitor, read or respond to contact, or attempted contact outside of working hours, when they are not expected to be working or paid to be working, so long as doing so is not unreasonable. 

Hence, an element of employer mind reading seems to have been introduced with this clumsily expressed right: double negatives suck (non-legal term) as will answering the question: why hasn’t Sofie picked up her phone? Is she being reasonable or unreasonable? 

The legislation contains a range of matters that bear on the question of Sofie’s reasonableness, remembering that unreasonableness is being measured having regard to these legislated factors and anything else relevant (they are non-exhaustive):

• the reason for the contact or attempted contact
• the method of contact and level of disruption it causes the employee 
• whether the employee is being compensated to remain available or perform additional work outside ordinary hours
• the nature of the employee’s role and the employee’s level of responsibility, and 
• the employee’s personal circumstances (including family or caring responsibilities).

Dot point three is important because a number of awards contain monetary compensation for matters such as being on standby. This factor will be reflected in the Fair Work Commission’s award term. 

If an employee is not covered by an award that provides such compensation, one of the ways to deal with this issue would be to pay an allowance to an employee with whom you want to maintain after-hours contact. 

The key to managing this new right must be communication by employers with their employees. I’d suggest that employers let their employees know, either through written policies or via specific training, the company procedures for employees to exercise their right to disconnect, including what would be considered unreasonable by the employer, particularly where a business operates using shift work. Employers should also set up procedures for employees to make a complaint relating to the right to disconnect so it’s clear how the employer will deal with the complaint. 

“Powerful and sustained change requires constant communication, not only throughout the rollout but after the major elements of the plan are in place. The more kinds of communication employed, the more effective they are.” – DeAnne Aguirre