From Monday, plenty of Australian workers will be looking forward to switching off.
That’s when the new “right to disconnect” laws come in, meaning employers can’t punish workers who refuse to pick up the phone out of hours.
Except they still can, under certain conditions.
The Covid pandemic exacerbated the blurring of lines between work lives and private lives. Work already followed people home on their laptops, smartphones and other devices. Working from home meant that work was in the home all the time.
In an attempt to restore boundaries and balance, the changes to the Fair Work Act have granted 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”.
“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,” the Australian Public Service Commission’s guidance on the new rules says.
The Department of Employment and Workplace Relations says the right is “about making sure employees know when they can switch off and what they have to do when they are not working (and not being paid)”.
Why do we need it?
Less unpaid overtime should lead to less stress and burnout, Dr Gabrielle Golding from the University of Adelaide’s law school says.
“Employees will have a definitive end to their working day and no longer carry the burden of continuing to be contactable about work-related matters in their private time, unless certain reasonable exceptions apply,” she says.
“This result signals a momentous societal shift in the value placed on work and similarly on wellbeing and private time.”
Employers will also benefit, she adds, through productivity gains from more refreshed workers.
Unsurprisingly, the unions are mostly onboard, while business groups say it’s unnecessary and could lead to job losses. The Coalition argued it would create “confusion and uncertainty” and reduce the ability for workplaces to have flexible working arrangements.
Similar laws have been brought in within existing enterprise bargaining agreements, as well as in France and other European countries – the European Commission is evaluating their effectiveness.
Does it include me?
Maybe. The laws come into play for all “national system employees” from 26 August this year, and for small businesses from the same date in 2025. That means it applies to most employees, as it rolls out through existing awards.
To be clear, the new laws do not prohibit bosses from getting in touch, or employees from contacting each other. They give employees the right to ignore that contact without disciplinary action.
So while your boss may flick you an email at 11pm when you finished work at 5pm, you don’t have to read it.
There is still flexibility in the system. Factors that need to be taken into account when employees and employers are negotiating how it will work include the reason for contact, how the contact is made, the level of disruption of the employee’s life, the extent of any compensation and the nature of the employee’s role and personal circumstances.
That reference to "compensation" means some people might get extra pay for remaining available out of hours, so higher income earners might be exempt.
“Even so, it would be worth those employees – particularly those in managerial roles – adhering to workplace practices that are in line with the right to disconnect. Doing so will enable them to lead by example and model behaviours that are in line with that of their colleagues earning below the threshold," Golding says.
What if my workplace doesn’t agree?
Golding says that, initially, the right will “open the gateway to conversations about reasonable and unreasonable out of hours contact”. Those conversations are already happening, she says, and the legislation should empower employees to take control of their working hours.
“Reasonable and unreasonable” is the key phrase here. Is the contact reasonable or unreasonable? Is the employee’s refusal to engage reasonable or unreasonable?
If unreasonable contact occurs, the employee first has to raise a complaint directly with their employer.
Any disputes can go to the Fair Work Commission, which can order mediation, conciliation, or arbitration. If that doesn’t work, the commission can issue stop orders.
If an employer contravenes a stop order, various civil penalties apply.
And there are other avenues employees can take through work health and safety and fair work laws.
Does it work?
Dr Rachael Potter from the University of South Australia’s centre for workplace excellence says a cultural shift is needed for employees to feel comfortable setting boundaries.
“It’s really hard when the manager’s the one sending the emails,” she says. “We want, ideally, the tone to be set, the culture from the managers and colleagues around you to agree on expectations that this time is to switch off and recover.”
Potter says while the law is “a really good step forward”, employees feel an obligation to respond to their managers. Without the chance to replenish cognitive resources, employees can themselves in a state of hypervigilance, heightened anxiety and at risk of burnout.
“I’d encourage employees to set their own boundaries,” she says. “Turn off notifications. Have a transition time after work.”
There has been speculation about certain industries being unsuited to having a right to disconnect. Golding says, for example, some suggest the legal profession couldn’t possibly do it – but she also points out that overwhelming stress, burnout, and undue pressure “are not akin to acting in a client’s best interests, or indeed in one’s own best interests”.
“Refusing to disconnect does not mean you will ‘get ahead’,” she says. “It means the opposite.
“Life is for living, and your work is but a part of your life – not the whole of it.”
• This article was amended on 26 August 2024 to clarify a statement from Gabrielle Golding about how provisions apply to higher income earners.
