Understanding the right to disconnect

| April 3, 2024

The ‘right to disconnect’ has been gaining traction globally in recent years, and Australia has joined the movement with the recent passing of the Fair Work Amendment (Right to Disconnect) Bill 2023.

The new legislation is a response to growing concerns about work-related mental health issues, particularly those linked to stress and overwork. The government also found that some employees were being driven to exhaustion due to an expectation of being accessible outside of work hours.

“The recent Safe Work Australia report 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,” says Professor Emmanual Josserand, an expert on the impact of innovation and Director of the Business Insights Institute at UNSW Business School.

“Research suggests that maintaining healthy boundaries between work and personal life is crucial for managing stress. Out-of-hours contact can disrupt much-needed rest and recovery time, potentially exacerbating existing stress.”

This legislation can change how employers communicate with employees, prompting questions about its impact on productivity, work-life balance, and employee wellbeing.

Will this new legislation work in Australia, what are the drawbacks, and how will it impact Australian workplaces? Prof. Josserand sheds light on this critical new development.

What is the right to disconnect?

Australia’s new legal right to disconnect allows workers to switch off after hours and choose not to engage with work communications. This doesn’t prevent employees from putting in additional hours, but it ensures they have the right to disconnect from ‘unreasonable contact’ outside of designated working hours.

The legislation outlines factors to consider when determining whether contact outside working hours is reasonable.

These include (1) the nature and urgency of the reason for contact, (2) the method of contact (e.g. a phone call would likely be considered more disruptive than an email), (3) whether the employee is compensated for working outside of their ordinary hours, (4) the level of the employee’s responsibility within the organisation, (5) the employee’s personal circumstances.

“For example, it depends on the level of responsibility”, says Prof. Josserand, “it would likely be considered reasonable to expect a high-level manager to respond to an urgent email after hours, whereas the same wouldn’t apply to an entry-level administration worker.”

Will it work in Australia?

Prof. Josserand believes the legislation has the potential to be successful.

“Australia is one of many countries worldwide that are adopting similar laws.

“France, for instance, was a frontrunner, making it mandatory for companies with more than 50 employees to establish parameters for after-hours communication in 2016. A court ruling there even ordered a company to compensate an employee who was required to constantly keep their work phone on,” says Prof. Josserand.

Other European countries have adopted similar regulations on the right to disconnect, including France, Belgium, Italy, Argentina, Chile, Luxembourg, Mexico, Philippines, Russia, Slovakia, Spain, Ontario, and Ireland.

Closer to home, Prof. Josserand says, “The Victorian Police Force included the right to disconnect in their bargaining agreement as early as 2021. This new legislation extends that right to all Australian employees.”

Drawbacks and impact

While Prof. Josserand is optimistic about the legislation’s potential benefits, he acknowledges there may be challenges.

“Some businesses have raised concern that it could hinder productivity and communication, particularly in fast-paced or client-facing environments.”

“However, the legislation does allow for some exemptions for urgent matters. The key is establishing clear guidelines and expectations around after-hours communication within organisations.”

The Government says that one of their hopes with the legal right to disconnect legislation will prevent employees from being made to work unpaid overtime.

“According to the new right, if there is a dispute about this right to disconnect and it can’t be solved amiably, both the employer and the employee can apply for the Fair Work Commission (FWC) to deal with the dispute,” says Prof. Josserand.

Prof. Josserand explained that the new law will impact mainly those with fewer responsibilities. “In cases where there is no business-related necessity for contact, where work performed outside of ordinary hours of work is uncompensated, and where individuals may be experiencing personal challenges.”

“The right to disconnect can be crucial in promoting employee wellbeing and creating a more sustainable work environment. This new legislation represents a significant shift in the Australian work culture and workplace rights.

“With the growing adoption of flexible and remote working arrangements, it’s essential for both employers and employees to establish healthy boundaries and expectations around communication outside of standard working hours,” he says.

The Business Insights Institute and the Research Lab on Hybrid Work Leadership at UNSW Business School have been monitoring the generalisation of hybrid, flexible work arrangements since COVID-19.

Prof. Josserand says, “While some people have thrived under flexible work arrangements, others have had difficulties adjusting. In the same vein, some organisations have adapted quickly to this transformation, while others are still figuring things out and need clearer policies. The new legislation will create an opportunity for more dialogue on the matter.”