The new right to disconnect: What it is and how to comply

It is 7pm and you message a team member about tomorrow's client meeting. A year ago nobody would have thought twice. Now there is a fair question: Are they entitled to switch off?

The right to disconnect gives employees a positive right to refuse contact outside their working hours, unless that refusal is unreasonable. It does not ban after-hours contact. It removes the assumption that people must always be available.

Here is what it means, the real risk for employers, and the practical steps to comply.

What the right to disconnect is

National system employees have a positive right to refuse contact, or attempted contact, from their employer and from third parties like clients, suppliers and customers outside their working hours. That includes refusing to monitor, read or respond, unless the refusal would be unreasonable.

The real risk: General protections

The right to disconnect is also a workplace right under the general protections regime. That means you cannot take adverse action, including disciplinary action, against an employee for exercising it.

In our experience this is the hardest part to navigate, especially in high performance, client facing and global workplaces. The risk often surfaces when an employee who is performance managed or dismissed had earlier raised concerns about after-hours contact. The three questions that decide it are: What are the employee's working hours, what is unreasonable refusal, and how far can both be shaped by the contract and your policy.

What counts as "unreasonable" refusal

Section 333M of the Fair Work Act lists the relevant factors:

• the reason for the contact, and how it is made;
• the level of disruption it causes the employee;
• whether the employee is compensated for being available or working extra hours;
• the nature of the role and level of responsibility; and
• the employee's personal circumstances, including caring responsibilities.

Refusal is unreasonable where the contact is required by law.

If a dispute arises

Parties try to resolve it at the workplace first, then can apply to the Fair Work Commission. The Commission cannot order compensation, but it can order that unreasonable contact stop, that disciplinary action stop, or that an employee stop unreasonably refusing contact. Breaching an order is a civil remedy provision that carries penalties.

What employers should do now

A structured approach keeps the risk low and can lift engagement:

• Identify who is contacted, or expected to be contactable, outside working hours, and why.
• Consult those employees and their managers on what is reasonable, given their roles, your industry and health and safety duties.
• Where appropriate, update contracts, position descriptions and templates to define working hours and to reflect any compensation for availability.
• Put a Right to Disconnect Policy in place that sets expectations and a workplace-level process for concerns.
• Train managers, employees and, where relevant, third parties.

This article is general information, not legal advice. For advice on your situation, ask Lawlux or talk to a Lawlux lawyer.

Dave Burnton

Managing Principal · Employment & IR

Dave is Lawlux's Managing Principal and leads the employment and industrial relations practice.

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