Australia to enforce ‘Right to Disconnect’ law: Key implications

People & Culture: Changes to the Australian Fair Work Act will give workers the formal right to disconnect from all work communication outside their usual work hours. The main driver for introducing “right to disconnect” laws has been to protect the health and wellbeing of workers in an increasingly hyper-connected world.

But what exactly will the new laws mean for Australian businesses, managers and employees?

The growth of digital devices – including smartphones, laptops, tablets and smart watches – means many Australian workers have been working way beyond their contracted number of hours for many years.

A 2023 Australia Institute study estimated that employees on average were clocking up an extra 5.4 hours of unpaid work per week. The unofficial encroachment of work duties into workers’ personal time – also called “availability creep” or “time theft” – equates to an extra 281 hours’ unpaid work per year.

This is estimated to be costing workers an average of AU$11,055 annually. It has led to serious concerns for employee health and welfare, work-life balance and workplace exploitation.

Associate Professor John Hopkins, Swinburne University of Technology, said “Right to disconnect laws should challenge managers to create a work culture where employees feel comfortable disconnecting from work and understand the importance of maintaining a clear boundary between work and rest, where their rest periods are formally respected and preserved.”

The post-pandemic rise of flexible work arrangements in Australia, while offering many lifestyle and health benefits, may also contribute to our “always on” culture and expectations to be constantly available and contactable.

This digital presenteeism has been found to affect the health of workers in different ways, including causing headaches, eyestrain, insomnia, back pain, anxiety and burnout.

“The recent Safe Work Australia report, opens in a new window on ‘psychological health and safety in the workplace’ indicates a significant rise in work-related mental health problems, especially amongst women, leading to more time loss and compensation for injuries and illnesses,” said Professor Emmanuel Josserand, opens in a new window, an expert on the impact of innovation and Director of the Business Insights Institute, UNSW Business School.

However, he acknowledges there may be challenges, saying “Some businesses have raised concern that it could hinder productivity and communication, particularly in fast-paced or client-facing environments.”

The new Australian law will not restrict managers from contacting employees whenever they wish, but it will give their employees a legal right to refuse to monitor, read or respond to communications from an employer or third party made outside their working hours, unless refusal is unreasonable.

If an employee chooses not to respond, disciplinary action cannot be taken, nor can the employee be treated differently, such as through rostering or performance requirements, for deciding to disconnect.

This should encourage conversations about what represents reasonable contact. The Fair Work Commission says this must be based on the reason for contact, the employee’s personal circumstances, the nature of the employee’s role and responsibilities, and whether the employee is being compensated for being available outside ordinary work hours.

In some countries, right to disconnect policies have been formally set in law, while others rely on self-regulation by employers instead.

France, for example, legislated out-of-hours’ electronic communication between employers and employees through statutes and legislation, meaning government entities are required to enforce the right and a court is needed to interpret it.

Germany, on the other hand, does not formally legislate disconnection provisions but many of its companies already have their own regulations in place.

In Australia, the right to disconnect will be a right under general protection laws. Disputes about an employee’s response will need to be discussed and resolved at the workplace level but, if a resolution isn’t possible, employees or employers can take the case to the Fair Work Commission. The commission can then make orders or deal with the dispute in other ways.

The new legislation come into effect on 26 August.

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