Proposed right to disconnect

The right to disconnect

On 12 February 2024 the second tranche of the Closing Loopholes Bill passed through Parliament and granted a new employee right to disconnect.

The right to disconnect means that employees are not required to monitor, read or respond to work communications from their employer or a third party outside of their work hours, unless the refusal is unreasonable.

The right for employees of small businesses won’t kick in until 18 months following royal assent. For all other employees the right comes into effect in six months following royal assent.

How will the right to disconnect impact flexible work arrangements?

With a third of employees having an agreement to work flexible hours as of August of 2023,[1] concerns have been raised about the interaction between the right to disconnect and the operation of flexible work arrangements.

The right to disconnect has been criticised as a one-size-fits all approach; however, the right is grounded by a ‘reasonableness’ consideration. This means that agreed upon flexible work arrangements may not be impacted by the right to disconnect.

Take for example workers with an agreed arrangement to leave work to pick up children and then resume work from home, after hours. These individuals are unlikely to be able to refuse contact from their employer after hours as such contact may be deemed reasonable given the circumstances.  The Fair Work Commission says it will take a holistic approach to determine whether contact is unreasonable.

The Fair Work Commission has been granted the power to make orders to stop employers contacting employees out of hours, or in the alternative, to stop employees from refusing to be contacted by their employer. Like stop bullying and stop sexual harassment orders, it remains to be seen how much this new pathway to protect a worker’s right to disconnect will be used in practice.

Preparing for the new workplace right

Employers should consider updating their organisational capabilities, including policies and training to accommodate this new protected workplace right.   Please contact our Employment, Discrimination and Equality team if you have any questions about preparing for this new legislation.

[1] Australian Bureau of Statistics, Working Arrangements, Aug 2023 (Catalogue 6336.0, 30 August 2023).