Amendments to the Fair Work Act come into effect today, giving employees the right to disconnect from the job outside of working hours.
From today, the right to disconnect – among other employee rights – is enshrined in law. The changes grant workers “an enforceable workplace right to refuse to monitor, read or respond to contact, or attempted contact, from their employer outside of their working hours, unless such refusal is unreasonable”.
Australia is now one of six countries in the world with similar laws, following the lead of France, Spain, Canada, Argentina and Ireland.
Last year, the Greens tabled the Fair Work Amendment (Right to Disconnect) Bill 2023 with similar proposals. While that Bill did not pass, the discussion returned to the government’s agenda earlier this year.
The Fair Work Ombudsman Anna Booth said it is now up to individuals and workplaces to learn about these changes that will better protect employees’ work-life balance and boundaries.
“We encourage workplace participants to educate themselves on the right to disconnect and take a commonsense approach to applying it within their workplace,” Booth said.
“It will be ideal if employers consult with employees and their unions on the policies that apply in the workplace.”
So, what do the laws look like? Here’s everything you need to know.
What is the ‘right to disconnect’?
Have you ever just sat down on the lounge and turned on your favourite TV show, before feeling your phone buzz with a message from your boss? Perhaps you’ve felt the need to respond straight away, to switch back on “work mode” even after you’ve finished up for the day?
As of today, the right to refuse contact with your boss after hours is enshrined in the law.
“The right to disconnect will grant all national system employees an enforceable workplace right to refuse to monitor, read or respond to contact, or attempted contact, from their employer outside of their working hours, unless such refusal is unreasonable,” the Australian Public Service Commission (APSC) guidance on the new laws reads.
“The right to disconnect will also enable an employee to refuse to monitor, read or respond to work-related contact, or attempted contact, from a third party.”
Are there any exemptions?
There is a key phrase used by the ASPC in its guidance on the new laws: “unless such refusal is unreasonable”. So what does “unreasonable” mean?
The ASPC have a non-exhaustive list of five factors that must be taken into account when determining whether contact from your boss is reasonable or unreasonable.
The first factor is the reason for the contact or attempted contact, followed by how the contact is made, and the level of disruption it causes the employee.
Next: is the employee compensated for this contact or attempted contact? To what extent are they compensated in order to “remain available to perform work during the period of contact”?
Finally, what is the nature of the employee’s role and level of responsibility, and perhaps most importantly, what are their personal circumstances? Do they have family or caring responsibilities?
Considering these matters will assist in determining if contact or attempted contact is reasonable or unreasonable.
What happens next?
It is expected that parties disputing a matter concerning the right to disconnect laws should first attempt resolving the issue at a workplace level.
So if you believe you are being unreasonably contacted outside of working hours, it is best to speak with management, HR personnel, or whatever procedures your workplace offers to resolve the issue.
In the event you are unable to resolve the matter at a workplace level, the next step is to lodge a complaint with the Fair Work Commission (FWC). The Commission will review the case and can issue a “stop order” to your employer if they determine contact or attempted contact is unreasonable.
Responses
While critics of the laws believe the right to disconnect will benefit “lazy workers”, Australian unions see this as a big win for employees.
Emeline Gaske, the Assistant National Secretary at the Australian Services Union, welcomed the changes to the Fair Work Act.
“The right to disconnect now being enshrined in the Fair Work Act finally makes it possible to clock off and switch off without the fear of negative consequences at work, which all workers are entitled to,” Gaske said.
Last year, the ASU conducted a survey that found half of respondents felt pressured to take calls or check emails outside of work hours. What’s more, 70 per cent of respondents said there were regularly performing work outside their agreed working hours, while almost two-thirds had been contacted about a work-related matter despite being off sick,on holidays, or another form of leave.
“We all know what it feels like to get that call or email in the middle of dinner that we have to respond to – forcing you to switch back on. It can take hours to unwind again, lead to lack of sleep, and affect mental health,” Geske said.
“This legislation is a win for workers and ASU members, who have been campaigning since the pandemic for the Federal Government to enshrine the right to disconnect.”
Dale Beasley, Secretary of SA Unions, said the changes are a “huge step forward” for employees looking to shore up their work-life balance.
“These new workplace rights come at a crucial time, offering much-needed job security during a cost of living crisis that hits insecure workers the hardest,” Beasley said.
“These achievements wouldn’t have been possible without the tireless efforts of unions and their members. This is a win for every worker who stood up and campaigned for better rights and protections.
“Unions will continue to stand with workers to ensure these new laws are properly implemented. If you’re not getting these new rights in your workplace, speak to your union.”