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Picture this: it’s 5 o’clock and it’s time to shut your laptop, ignore any incoming emails and enjoy your evening. You’ve ditched your work attire and slipped into your comfy clothes, cooked up a delicious dinner and settled onto the couch to continue your binge of The Office.
But then, just as you begin to relax, you see something out of the corner of your eye. It’s your phone, and it’s lit up with an email from your boss. That’s okay, because it’s outside of work hours – or at least, it should be.
So, where does work end and home life begin? And what rights do Australian employees have to avoid being constantly plugged in? The newly introduced ‘right to disconnect’ is designed to more clearly define the boundary between work and personal time.
We asked Dr Kerrie Saville, a senior lecturer in Deakin University’s Department of Management in the Faculty of Business and Law, to give us the low down on the right to disconnect.
Before August 26, 2024, Australian workers didn’t have explicit protections against the pressure to respond to work communications outside of regular hours. Now, with the right to disconnect coming into effect in Australia, we can put an end to the expectation that employees are constantly available.
First and foremost, is the right to disconnect a law? The answer is yes. It’s a game-changing piece of legislation designed to provide clear boundaries between work and personal time.
Secondly, what do the right to disconnect laws involve, and are there any exceptions? Let’s dig into the details of this legislation to understand how it aims to protect your downtime and what limitations might still apply.
In a nutshell, the right to disconnect laws are all about ensuring that your time outside of work is truly your own. This uninterrupted personal time helps maintain a healthier work-life balance, allowing Australia’s workforce to use their time at home to relax, recharge and participate in the activities they love.
According to Fair Work, this legislation gives employees the right not to monitor, read or respond to communications from an employer or a third party outside of their working hours, unless refusal is deemed unreasonable. In other words, it establishes new rules for contacting staff after hours in Australia.
So, how does the Fair Work Commission decide if a refusal is reasonable or not? It’s a bit of a grey area, but key factors include the reason for the contact, how it’s made, and how disruptive it is. They also consider whether you’re compensated for the extra work, your role and responsibilities and your personal circumstances.
Urban sociologist Ray Oldenburg popularised the idea of the ‘three spaces’: home as the first place, work as the second place, and neutral grounds like libraries or parks as the third space. Now that working from home has become more common, the lines between work and home have become blurred, and this blurred boundary can result in burnout.
The right to disconnect laws are designed to keep these spaces distinct, ensuring your home remains a peaceful retreat from work-related interruptions. This clear boundary helps you maintain a healthy balance between your personal and professional life, making sure you can truly unwind and enjoy your time off.
On August 26, 2024, Australia officially joined the ranks of nations with right to disconnect laws. While this is a major win for Australian workers, it’s important to note that we’re not exactly leading the charge on this front. In fact, Dr Saville points out that Australia is playing catch-up with Europe.
‘The introduction of our laws follows the introduction of similar laws protecting the rights of employees in European countries,’ says Dr Saville. ‘These laws are in part a response to the growing recognition of the risks to employees psychological and physical well-being of ‘always being on’ and contactable due to technological advancements.’
France pioneered this approach in 2016, becoming the first country to pass a right to disconnect law, which took effect in 2017. Since then, Belgium, Portugal, Spain, Ireland, Germany and Italy have jumped on the bandwagon, with many other nations exploring similar laws as flexible working arrangements become increasingly common.
With these new laws, Australia is making a bold statement about its commitment to maintaining work-life balance.
Now, Australian employees can finally kick back and enjoy their personal time without worrying about responding to work emails that come in after hours.
The right to disconnect legislation will be rolled out in two phases: one for non-small businesses and one for small businesses.
For non-small businesses, defined as those employing 15 or more employees, the change came into effect on August 26, 2024. Small businesses, with 15 or fewer employees, have an additional year’s grace period, with the change coming into effect on August 26, 2025.
However, there are exceptions.
The right to disconnect laws only apply to employees that are considered part of the national workplace relations system, as defined by the Fair Work Act 2009. This system excludes independent contractors, sole traders, unpaid volunteers and unpaid trainees or interns associated with a school, university or other institution.
If you fall under any of these categories, it’s important to understand what specific rights and protections you are entitled to.
Before the right to disconnect laws came into play this year, Australia had some protections in place, but they were a bit fuzzy around the edges. Dr Saville highlights that the Fair Work Act of 2009 had a provision for employees to refuse to work unreasonable additional hours.
However, this provision wasn’t widely used, and it left many wondering if it applied to after-hours digital communications. The ambiguity meant that employees often lacked clear protection against the expectation of being constantly available.
Enter the right to disconnect law, introduced through the Fair Work Amendment (Closing Loopholes No. 2) Bill 2023. These new regulations aim to close the gaps and provide much-needed clarity, ensuring that employees have explicit protection when it comes to after-hours work communications.
For employers, the right to disconnect law represents both a challenge and an opportunity, and there are several things that employers need to know. As Dr Saville points out, “Employers need to ensure they understand and comply with these new laws to avoid potential pitfalls.”
As outlined, the right to disconnect laws allow employees to refuse to monitor, read or respond to work-related communications outside of their working hours, unless refusal is deemed unreasonable. If your workplace had previously expected employees to be available around the clock, it’s time to reassess and adjust these expectations.
‘These new laws will require that employers review and update their current work practices in relation to out of hours contact, including associated payment, position descriptions, contracts of employment and internal policies and procedures,’ says Dr Saville. ‘They should consult employees to understand what suits their roles and the workplace.’
For those providing employees with award conditions, it’s worth noting that the Fair Work Commission has incorporated a ‘right to disconnect’ term into modern awards. This addition means that employers should brace themselves for employees to negotiate more favorable provisions during bargaining rounds and enterprise agreements.
While some employers have expressed concerns that the new laws may complicate communication, potentially impact productivity, and increase training and compliance costs, there are potential upsides.
‘It is possible that employers will benefit from their employees having an improved work-life balance, in turn reducing the cases of employee stress and burnout that they’re required to manage,’ says Dr Saville.
In essence, while the right to disconnect laws introduce new compliance challenges, they also pave the way for a more balanced and healthier work environment, aligning the interests of both employees and employers.
So, the right to switch off in Australia is officially in play, but with any new law, the million-dollar question is: how will it be enforced?
‘Employers and employees will inevitably disagree as to whether an employee’s refusal to monitor out of hours contact was reasonable or not,’ says Dr Saville. ‘In these instances, they are required to try and resolve the matter at the workplace level.’
If that doesn’t do the trick, the Fair Work Commission can step in. They have the authority to issue a ‘stop order’ if there’s a risk that the unreasonable behaviour will continue or to handle the dispute as they see fit. Union members might also seek representation to ensure their rights are upheld.
While the right to disconnect aims to establish a clear boundary between work and personal time, it’s these mechanisms that will help to address any bumps in the road if conflicts arise.
The right to disconnect is a significant step in the evolution of Australia’s work rights, but it’s far from the last word on the subject. Another trend gaining traction is the four-day working week. This approach proposes trimming the traditional five-day workweek down to four days while still maintaining the same level of pay.
Australia isn’t alone in exploring this concept. New Zealand, for instance, conducted a notable trial in 2018, which yielded promising results. Emerging research and similar trials globally indicate that a shorter workweek can boost productivity and enhance overall employee well-being.
Dr Saville adds that the landscape of work rights is always evolving. ‘As is the case with all laws, whether new or old, there is always a possibility of further reform once more becomes known about the lived experiences of the relevant parties, and any unintended consequences that arise,’ says Dr Saville.
These work arrangement trends, including the right to disconnect, highlight a growing desire for flexible work arrangements, driven by the recognition that a more adaptable work schedule can benefit both employees and employers. As the work landscape continues to evolve, we may see more shifts toward arrangements that support a healthier, more balanced life.
Senior Lecturer,
Deakin Business School
