Australia joins list of countries that have ‘right to disconnect’

Australia has recently become the latest country to implement ‘right to disconnect’ legislation for the country’s employees. What does the legislation entail and how will it affect workplaces?

What does ‘right to disconnect’ legislation mean?

Australia’s right to disconnect legislation came into effect in August 2024, and stipulates that employees cannot be penalised for reasonably refusing to monitor, read or respond to work-related contact or attempted contact from an employer or a third party outside of their normal working hours.

Currently, the legislation only applies to employers that have more than 15 employees. In August 2025, the ruling will then apply to employers that have fewer than 15 employees too.

Whether or not an employee reasonably refuses to read or respond to work-related contact will be ascertained by considering the following:

The reason for the contact
How the contact is made and the level of disruption this causes the employee
The role and responsibilities of the employee
The employee’s personal circumstances (including family or caring responsibilities)
Any compensation (including monetary and non-monetary) the employee receives for performing work or remaining available outside of working hours

Under the new legislation, and employer is prohibited from taking negative actions against employees who use their right to disconnect. Disputes over the reasonableness of any refusal to communicate outside of working hours should be handled within the workplace where possible.

In the event that a dispute cannot be resolved in-house, then the employer or employee can make an appeal to the Fair Work Commission (FWC) for a decision. The FWC can then either order the employee to respond to contact, instruct the employer to refrain from contact, or take some other necessary action to resolve the issue. Non-compliance with the FWC’s decision may result in a monetary fine for either the employee or the employer.

Which countries have ‘right to disconnect’ legislation in place?

Australia is by no means the first country to implement the ‘right to disconnect’. France became the first country to pass a law in 2001, which gave employees at firms with more than 50 workers the legal right to refuse to send or respond to work emails. The legislation has since evolved in an effort to protect French employees’ work-life balance.

Other countries that have some form of right to disconnect legislation include: Ireland, Luxembourg, Portugal, Slovakia and Italy.

Should employers contact employees outside of working hours?

For countries that don’t have specific legislation around the right the disconnect, contacting employees outside of working hours may be more commonplace, but does that make it okay?

Contacting employees outside of working hours is sometimes unavoidable. If there is a reasonable or legal need for it then it is indeed necessary, but if the contact is to ask for extra work to be done, to check something, to do a favour, or to pick up new responsibilities, then it’s fair to argue that an employee’s rest time or annual leave time should instead be respected and the request should be able to wait.

Since the pandemic, the lines between work and home-life have become even more blurred (this was one of the reasons for Australia’s new legislation), so upholding work boundaries has become more important than ever.

Although not every country has right to disconnect legislation, they do have their own working time regulations, which stipulates a minimum amount of rest time that employees are entitled to in between their working hours. In the UK, this is known as The Working Time Regulations 1998 which states that workers have the right to an uninterrupted rest break each day of at least 11 hours.

Should the UK have ‘right to disconnect’ legislation?

The conversation surrounding right to disconnect legislation has swirled for some time in the UK, with a poll conducted in 2022 showing that 6 out of 10 people would support legislation.

The Labour Party’s Green Paper proposed bringing the right to disconnect to the UK as part of the anticipated Employment Rights Bill, and having won the General Election in July 2024, that proposed change is expected to resurface once again.

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