What do the new right to disconnect laws mean for you?

Australian workers will soon have the right to close their emails, switch their phones to 'do not disturb' and ignore any unreasonable contact from their employers beyond normal work hours.

From Monday, the 'right to disconnect' law will kick in for employees working for medium and large businesses, with small businesses exempt from the new law until August 26, 2025.

So could the right to disconnect meaningfully change workplace dynamics? How will it actually work in practice? And what will employees and employers need to do if there's a dispute?

We spoke to two experts to answer some of the fundamental questions surrounding the new right to disconnect law.

1. Why is the right to disconnect being introduced?

In a report released by the Centre For Future Work in November 2022 on the topic of overtime and a potential right to disconnect in Australia, researchers made the case that the expansion of technology in workplaces was leading to an increasingly blurred line between work and home life.

The blurring is not without consequence. When asked about the negative consequences of working beyond their normal hours, respondents to a survey conducted as part of the research cited physical tiredness (35%), stress and anxiety (32%) and mental exhaustion (31%) as major drawbacks.

"An employee taking a laptop home to complete a task, answering a mobile phone or attending a Zoom meeting outside of hours all facilitates this expansion of work responsibilities beyond normal working hours," the report stated.

And it was this issue that advocates of the right to disconnect highlighted when it was legislated by parliament in February, with members of the government arguing that workers shouldn't feel the need to be engaged with work 24 hours a day when they're not being paid to be.

2. What will it mean in practice for workers and businesses?

"The right to disconnect will permit an employee to switch off and refuse to respond to after-hours contact, or attempted contact, from their employer or a third party, like a client. That's unless that refusal is unreasonable," says Amanda Lyras, partner at law firm Clayton Utz.

This won't apply across the board though. For instance, Lyras says that workers who are required to be on call as part of their job may not see a difference, whereas employees who work more rigid hours (e.g. a 38-hour week) and whose duties are confined to those hours are more likely to see a change.

And rather than bringing about an influx of cases to the Fair Work Commission (FWC), she believes that the change is more likely to prompt a cultural shift within workplaces.

"I think we will see more thoughtfulness given to when it is appropriate for people to be working and when is it appropriate for people to be given the space and time to switch off.

"And that will really come down to the type of role that a person is performing, how they're remunerated for their work, any relevant personal circumstances and the reason for the contact."

3. Will businesses be barred from contacting their workers?

In a speech made last month, former employment minister Tony Burke noted that businesses won't suddenly be banned from doing things like sending out work rosters to their employees. Rather, the new right is more about ensuring that workers aren't punished if they choose to switch off.

"Employers will still be able to call people if there's an extra shift, 'We can't find something', that sort of thing, that will all still happen.

"But the concept that you are meant to be constantly monitoring your email, the concept that you have to have your phone with you at all times, the concept that you can be punished because you didn't do something during a period that you weren't working, is over."

The new right to disconnect doesn't come with an exhaustive list of what kind of contact is and isn't acceptable though. Instead, contact is distinguished as being 'reasonable' or 'unreasonable'.

4. What is reasonable and unreasonable contact?

When it comes down to it, Lyras says that what is considered reasonable and unreasonable contact will depend on an individual's role and their personal circumstances. But there are a few key points set out in the legislation that the FWC would consider in a ruling.

"The first of those is what the reason for the contact is. Is it an emergency? Or is it someone contacting another person where the contact wasn't necessary?

"It also requires looking at how the contact was made and the level of disruption that may have been caused to the employee.

"And it looks at their personal circumstances, including family and caring responsibilities and other priorities they may have outside of the workplace."

In addition to that, Lyras says that the kind of role and compensation someone gets for being available after hours will be considered. For example, it would be more reasonable to contact an employee who is paid to respond to any requests or issues outside of normal hours.

5. Is the right to disconnect a cure-all for after-hours work?

"I think it's excellent that we try to ensure that there are times when people aren't working. Especially for professional staff. Having said that, I'm not sure if this is a good way of protecting people," says Professor Karin Sanders, an organisational behaviour expert at the University of New South Wales.

Sanders' thinking comes in relation to workplace power dynamics. So even if an employee wants to be able to switch off, her concern is that they may feel pressured to respond to an after-hours question or request for information to avoid jeopardising their standing in the company or promotion prospects.

"So really, it depends much more on supervisors and the senior management of an organisation to set a good example - to have a policy in place where there's no expectation to send emails on the weekend or before eight o'clock in the morning, for instance," Sanders says.

6. What can employees do if their employers aren't playing ball?

If a dispute arises in relation to after-hours contact, Lyras says that the first step for employers and employees is to try to resolve the issue in-house at the workplace level.

"Part of that involves employers coming up with a framework for how they're going to deal with disputes, similar to frameworks they may have in place for bullying claims or flexible work requests.

"They'll also need to consider who is coming forward, what the parameters and scope of that person's role are, what the nature of the contact was, whether it was reasonable given that individual's working arrangements and then seeking to find a resolution that works for both sides."

If the issue still can't be resolved though then the Fair Work Commission can be contacted for support.

"On the employee side that may be to seek an order that they not be required to respond to any contact outside of hours, or that they not be subject to disciplinary action for refusing to respond," Lyras says.

"For employers, it may be seeking orders that employees are required to engage with out of hours of contact."

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