Employment Law Update – The Right to Disconnect 🕒

Discover the latest changes in employment law with our insightful thoughts on Australia’s “right to disconnect” legislation. These transformative changes grants employees the power to ignore work-related calls, emails, or messages outside of their working hours, bringing a nuanced balance between operational needs and employee well-being.

Employment Law: The right to disconnect.

Australia’s “right to disconnect” laws introduce nuanced rights for after-hours work communications.   Employees’ right to ignore work-related calls, emails, or messages outside of their working hours (subject to some exceptions) will be protected as a workplace right.

The refusal to engage in after-hours communication will be deemed unreasonable only under specific circumstances such as:

• legal requirements
• the nature of the employment and role
• urgency
• compensation for availability outside standard hours
• personal circumstances

Specific rules will be developed to help assess the reasonableness of the refusal to engage with after-hours communications.

Can I email employees after hours/between shifts?

The laws won’t prevent employers from sending communications after hours but will protect employees from adverse action for not responding out of hours. The aim is to balance operational needs with employees’ well-being, reflecting a workplace mental health and work-life balance and recognising the benefits of disconnecting from work.

When do these rights apply?

While further amendments to the proposed laws are expected, the rights are expected to commence on 26 August 2024 for those with more than 15 employees and on 26 August 2025 for small business employers.

How do we prepare?

Updating your understanding of workplace rights and obligations is essential. A review of your employment contracts, workplace policies and position descriptions are also necessary to ensure that roles and responsibilities of employees are clearly articulated. A holistic approach is needed to ensure policies and conduct align with employees’ rights, for example making clear whether and when employees are expected to engage with after hours communication. Train managers and employees about the appropriateness of what may be considered reasonable for your business. Communicate the operational requirements of the business and if contact may be required outside of work, ensuring this is reflected in employment agreements and position descriptions.

Flow-on effects

These changes are likely to require changes to most collective agreements upon renegotiation. Employers and employees should expect bargaining to involve making the agreements compliant with the new laws and provision for out-of-hours communication.

Penalties for employers?

The original proposal for the legislation suggested criminal penalties for breaches. This will be reviewed under separate legislation and we expect, at most, civil penalties or damages to apply.

Further developments

The proposed legislation is likely to be considered further and amendments are likely. They are expected to include allowing employers to seek responses from employees to fill empty shifts outside work hours.

If you have any queries regarding the impact of these laws on your business or need advice or employment agreements drafted we can assist. Please contact one of our team to discuss how our employment lawyers assist.

About The Author - Roland Müller

Roland Müller is a Partner in our litigation practice area. He is a highly-experienced lawyer, an accredited specialist in commercial litigation and a nationally-accredited mediator. Equally...