Will employees gain the right to disconnect from work?

Australian workplaces are already among the most highly regulated in the world. Is compelling Australian employers under legislation not to contact employees after a certain time at the end of each day, thereby giving employees a “right to disconnect”, a step too far?

This has been a hotly contested issue as legislation containing a right to disconnect has made its way through Federal Parliament, with supporters praising the legislation for allowing employees the right to “switch off” and detractors raising concerns about its impact on flexible working. This week, a reasonable development occurred - the prohibition on employers contacting employees, and associated fines for employers that do not comply, have been removed. Employees, however, will be given a right not to face sanctions if they ignore calls or emails from their employer out of hours.

What's happened up until this point?

An initial draft of the Fair Work Amendment (Right to Disconnect) Bill 2023 (Bill) tabled in Parliament in March 2023 contained a prohibition preventing employers from contacting employees outside of the employee’s hours of work unless there was an emergency, or the employee was in receipt of an availability allowance for the period during which the contact was made.

Read our previous insight on the key features of the Right to Disconnect Bill here.

Where is the Right to Disconnect Bill now?

Nearly a year after the Bill was first introduced to Parliament, a watered-down version is expected to be included as part of the Federal Government's wider Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023.

As at 7 February 2024, the Labor government requires one more vote to pass the Bill.

The most recent change to the Bill, spearheaded by independent senator David Pocock, involves shifting the right from a general prohibition on employers unreasonably contacting employees after hours to an entitlement for a worker to ignore calls and emails from their employers without penalty. This means that a manager who sends emails after hours to a worker will not be penalised for doing so, and a worker exercises their right to switch off and who elects not to respond because the email was not received during their paid working time will not be punished for it.

After being provided with draft legislation containing the Bill's provisions, the Senate Crossbench was strongly opposed to the proposition of introducing fines for employers who contact workers out of hours. Whilst initially a fines-based system was proposed, Minister for Employment and Workplace Relations Tony Burke has supported the notion that employers should not face fines for reaching out to employees after hours. The rationale in removing the fines-based system supports the understanding that employers should be protected where there are reasonable grounds for contacting their employees outside of agreed hours.

If a manager persistently contacts a worker after hours and it is deemed unreasonable in the circumstances, an employee can apply to the Fair Work Commission for a "stop order". This will be similar to the stop bullying and stop sexual harassment jurisdiction of the Fair Work Commission.

In handing down a "stop order", the Fair Work Commission would be able to take into consideration factors including the circumstances in which the contact occurred, how often the employee was contacted, and the nature of their role.

How can employers prepare for the new legislation?

As the Bill is expected to pass shortly, employers should be aware that they will now have less say in when they can expect responses from their employees (if contact is occurring outside of agreed work hours).

The Bill has been criticised for its one-size-fits-all approach, which may not be effective given the range of workplaces and industries the federal legislation will cover. However, in anticipation of an employee's right to disconnect, employers should consider:

• preparing policies around the use of work technology outside of agreed working hours;
• monitoring employees' work activity outside of agreed working hours;
• encouraging managers to respect employees' boundaries;
• providing training for managers to ensure they don't take action against employees who are exercising their new right;
• training employees about the new right and what their employer is doing about it;
• organising feedback mechanisms for employees who feel the need to work outside of agreed working hours;
• encouraging all employees to schedule any emails and tasks to be delivered during agreed working hours; and
• organising training that highlights the mental health benefits of disconnecting from work.

Stay tuned

Prime Minister Albanese has advocated for the view that if someone is not being paid to work 24 hours a day, then they should not be penalised for not being available 24 hours a day.

The Workplace Relations & Safety team at Lander & Rogers will be closely monitoring the progress of the Bill through Parliament and will provide further information and analysis on the impacts of these changes as the Bill progresses.