Clock off and switch off: the right to disconnect from work July 15, 2024

Here’s what you need to know about the 2024 changes to Australian workplace laws 

From August 2024, Australian employees will have a legal right to disconnect from work in certain circumstances. As an employer, you’ll need to review workplace practices to ensure your business complies. You should also consider how the laws may advantage and disadvantage your business. Here’s what you need to know. 

What do the new laws say? 

Australia’s Fair Work Act will give employees the right, in some circumstances, to disconnect from work outside of their usual work hours. For example, the right to switch off or refuse contact from their employers, including refusal to:

• monitor,
• read, or
• respond to 

communications and attempted communications from their employer. Communications may include emails, phone calls, messaging services and text messages.

These rights extend to work-related communications from third parties, such as the employer’s clients.

However, the laws don’t stop employees from working extra hours (overtime) when they have agreed to do the work for payment. Instead, the laws deal with unreasonable contact, especially when it amounts to unpaid overtime. 

The new laws will form part of the general protections under the Fair Work Act. This is significant because general protections are workplace rights. An employer can’t take adverse action against employees for exercising their workplace rights. Adverse action includes dismissal from employment, demotion, discrimination and victimisation. 

The right to disconnect laws will commence on:

• 26 August 2024 for non-small business employers (with 15 or more employees, including regular casuals). 
• 26 August 2025 for small business employers (with fewer than 15 employees, including regular casuals). 

These businesses include any related entities.

What is considered unreasonable?

Employees can’t exercise their rights to disconnect if the refusal is unreasonable. This will depend on the circumstances, but things to consider include:

• the reason
• the method of contact or attempted contact 
• the disruption to the employee
• whether the employee is compensated and whether the compensation is fair
• the nature of the employee’s work, including seniority and responsibilities
• the employee’s personal circumstances, including caring responsibilities. 

Example

Billy is an administrative officer who reports to Chris, an executive assistant. Chris reports to Ash, a senior manager. Billy works Monday to Friday, 9 am to 5 pm.

One Saturday morning, Ash phones Billy and leaves a message instructing Billy to complete some photocopying tasks by the end of the coming week. Ash also wants to talk to Billy about some upcoming changes in the office. In the message, Ash says, “I should be speaking to Chris about this, but I’ll tell you instead. Call me back urgently.”

Billy decides not to return the call because:

• It’s not an urgent issue
• Ash could have sent an email instead. 
• The phone call is disruptive and intrusive
• Billy doesn’t get paid to work on the weekends
• Billy is a junior employee without any senior responsibilities. Chris has senior responsibilities

Billy decides to talk to Chris about the call on Monday morning; it’s time to set some boundaries.

What happens if there’s a dispute with an employee? 

The new laws set out how to manage a dispute if you disagree with an employee about the right to disconnect from work. 

First, you must try to reach an informal agreement or compromise with the employee. 

If that doesn’t work, either party can apply to the Fair Work Commission (FWC) for orders, for example:

• the employee must stop refusing contact, or 
• the employer must not contact the employee outside the employee’s work hours, or
• the employer must not take adverse action against the employee. 

Penalties for breaching the FWC’s orders may include fines.

What is the rationale for the new laws? 

Many Australians’ work lives have merged with their personal lives. There may be several reasons for this, including: 

• A trend towards longer working hours
• The rise of smart devices and access to technology
• The Covid-19 pandemic acting as a catalyst for remote working arrangements.

Australian Greens leader Adam Bandt described this as availability creep, which impacts a worker’s time, mental health, stress levels, and productivity. It often deprives workers of fair compensation for their time, and it poses significant problems for those relying on certainty of work hours to meet caring responsibilities.

The new laws are aimed at overcoming these issues.

What are the potential advantages and disadvantages of the right to disconnect laws? 

Right to disconnect laws are already in operation in countries including France, Belgium, Ireland, Italy, Portugal and Spain. Right to disconnect clauses are also included in some Australian enterprise agreements such as Victoria Police and Queensland public school teachers. 

Based on these examples, some potential advantages may include:

• Improved stress management and reduced burnout 
• Improved employee mental health and wellbeing
• Improved work environment
• Increased productivity
• Reduced employee turnover rates
• Improved company reputation
• Better employer-employee communication
• Improved personal relationships
• Reduced absenteeism
• Increased job satisfaction.

Some potential disadvantages may include:

• Reduced flexibility to manage changing business needs
• Increased costs in implementing policies, procedures and other compliance measures
• Reduced customer service, especially for businesses servicing international markets
• Reduced competitiveness compared with businesses in countries without similar laws
• Increased difficulties in managing remote workforces, international teams, and out-of-hours meetings and events
• Increased responsibilities for monitoring work hours and other compliance measures
• Increased risk of non-compliance with the new laws.

What should I do to prepare my business for the new laws?

If your business is a non-small business employer, act quickly to ensure compliance with the incoming laws from 26 August 2024. For small businesses, you should also start considering the potential impact on your business and take steps to ensure compliance by 26 August 2025. 

Steps to prepare should include:

• Reviewing employee contracts and duties to identify any out-of-hours communication practices
• Educating your managers and staff about the new laws, rights and obligations and setting boundaries
• Seeking our legal advice if contracts need to be changed, and about the impact of the new laws on awards and enterprise agreements
• Reviewing and updating workplace policies and procedures to include out-of-hours communication practices, focusing on when they are permitted and when they are not 
• Reviewing payroll and compensation processes for out-of-hours contact
• Considering whether work hours are adequately tracked and managed, and, if necessary, investing in new software to make this process more efficient and accurate
• Considering improvements to mental health and wellness programs and initiatives
• Considering how organisations in other countries comply with similar laws and developing plans to implement similar strategies.

The final word

Australia’s right to disconnect from work laws aim to regulate modern work practices. They reflect the increasing popularity of remote work as well as advances in technology. Being connected in this way has many advantages but also significant disadvantages, such as the blurred lines of employee availability. 

There’s always uncertainty about the impact of new laws. However, in this case, all employers should review key documents and consider out-of-hours contact practices.

We recommend seeking legal advice, regardless of the size of your business. Contact our workplace law team for more information about the right to disconnect from work, and how we can help your business comply with the new laws.