The Right To Disconnect: What is it and how does it work

You will have heard a lot about the new Right To Disconnect legislation in the news recently. But what is it and how does it work? The Sydney Morning Herald , The Age and Swaab help explain.

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What are the Right To Disconnect laws?

The Australian Parliament recently passed new ‘Right to Disconnect’ laws, which will come into effect in around six months.

The laws, developed by the federal government, are similar in nature to those that have been in place in France and Germany for some time.

The new legislation isn’t about banning employers from sending emails or making phone calls after hours. Rather, the legislation means that in theory, your boss can’t punish you for not responding to unreasonable contact.

The laws came about because of increasing concern about work-life balance. Since the pandemic, many employees have found they are increasingly being contacted outside of standard work hours, with minimal reward. Prime Minister Anthony Albanese attempted to explain the rationale behind the change, declaring:

“What we’re simply saying is that somebody who’s not being paid 24 hours a day shouldn’t be penalised if they are not online and available 24 hours a day”.

Under the legislation, if you dispute unreasonable contact with your employer and can’t resolve the issue, you can take your employer to the Fair Work Commission. Bear in mind, the Commission may rule in favour of you or your employer. Depending on which way the commission rules, the employer may be financially punished, or the contact may be found to be not unreasonable.

What is unreasonable contact?

Everyone would have their own definition of what is considered unreasonable contact. Under the legislation, what constitutes unreasonable contact will be determined based on several factors. These include how often your boss contacts you after hours, the reason for the contact, your family responsibilities, the level of disruption the contact caused and the method in which you are contacted. For example, bosses contacting employees to help fill extra shifts will likely be protected. An email will likely be seen as less disruptive than a phone call. Also taken into consideration will be factors relating to your specific role, such as your job description, level of responsibility and whether or not your employer compensates you for being available outside of hours. For example, a senior executive may not be covered by the legislation as frequent contact is expected as part of their profession, and they are paid accordingly.

The new legislation won’t apply to everyone and recognises the importance of being available in some industries. For example, if you are a doctor who is regularly on call it is likely the legislation will not cover you.

The changes are not universally supported. Many business groups are not a fan of the changes, believing they will over-complicate matters that should be based on common sense. They also believe the legislation will lead to prolonged, unnecessary disputes. Employees should also be mindful of the impact that enforcing their “Right To Disconnect” could have on their career progression. In many industries, including the public service, working extra hours can be a way of getting ahead in your career. While bosses can’t punish you for unreasonable contact, the implications of refusing contact on career progression and promotions are unknown so employees should proceed cautiously.

Employees should remember the Right To Disconnect only applies in certain circumstances. They should consider their personal circumstances and those of their employer before deciding to escalate a dispute.