Australia’s Right to Disconnect: Understanding the ‘Reasonable’ Standard (It’s Not a Total Ban)

Australia’s workplace landscape is continually evolving, and a significant recent change is the introduction of the Right to Disconnect. This change has sparked considerable discussion, but it’s essential to understand what the current law means, as it differs substantially from earlier proposals.

The initial draft of a Right to Disconnect bill was quite stringent. It proposed a blanket provision that prevented employers from communicating with employees outside their ordinary or standard working hours.

There were only two narrow exceptions where contact was permissible: if it was an emergency or a genuine welfare matter. A third scenario allowing contact was if the employee received an availability allowance, meaning they were explicitly compensated to be available outside standard hours. However, this version was complex, raising questions about the duration covered by such allowances. This initial draft, which focused primarily on employer conduct, ultimately did not progress.

Fast-forward to February 2024, the government introduced the current Right to Disconnect legislation. This new version represents a “substantial shift” and “completely departed from the original draft.” Unlike the earlier proposal, the current Right to Disconnect does not create a blanket prohibition on employers or third parties contacting or attempting to contact employees outside their working hours. Crucially, it also does not give employees an automatic right to ignore out-of-hours contact.

Instead, the current law introduces a different test: employees can still be required to monitor, read, or respond to contact or attempted contact if that requirement is considered “reasonable in the circumstances”. This means that, to provide comfort, an employer is not prohibited from sending an email or text message to a staff member outside of hours; the key is whether an expectation to monitor, read, or respond to that contact is reasonable. The test is now “a bit softer” than initially proposed.

It is essential to note the underlying principles behind introducing this right. Parliament considered it a way to rebuild the boundary around workers’ time, safeguard it, and reduce unpaid working time and wage theft. The Fair Work Commission (FWC) considered these principles when drafting model award terms related to the right.

Understanding “Reasonableness”: The Key Criteria

So, how do you determine if contacting an employee outside of hours or expecting them to respond is “reasonable”? The Fair Work Act provides a non-exhaustive list of factors to consider when assessing whether an employee’s refusal to monitor, read, or respond to contact is unreasonable. These serve as the “general themes” for assessing engagement with your workforce:

• The reason for the attempted contact or the contact itself: Why is the contact being made?
• How is the contact or attempted contact made, and what is the level of disruption it causes? Was it a quick phone call, a demanding email, or something causing a significant interruption to personal time?
• The extent to which the employee is compensated to remain available to perform work: Is the employee paid or otherwise compensated for being available or responding outside of standard hours?
• The nature of the employee’s role and level of responsibility: Does the inherent nature of the job or the employee’s seniority imply a need for occasional out-of-hours engagement?
• The employee’s circumstances: This includes factors like family and caring responsibilities.

These points are the foundation for assessment. Suppose a person exercises their right to disconnect and informs you they didn’t respond because of it. In that case, you will assess your requirement using these criteria to determine if their refusal was reasonable.

Beyond the Criteria: Practical Considerations for Employers

Expanding on these core criteria, there’s a more detailed list of considerations intended as a tool for employers to weigh up before contacting an employee outside working hours if a response is expected. These questions aim to help you exercise judgment effectively:

• What are the individual employee’s hours of work? This is assessed individually, not just your business’s standard operating hours. An employee’s contracted hours are key.
• Are they covered by an industrial instrument (modern award or enterprise agreement)? Some industrial instruments may have right-to-disconnect terms potentially more restrictive than the legislation.
• Is the employee on leave? Remember that contact during annual leave or sick leave is also considered out-of-hours contact.
• How urgent is the contact? Is it a “preferred deadline” or the “real deadline”? Can it wait until the employee is back at work? Often, instructions for tomorrow can wait until tomorrow.
• Can the communication minimise disruption? When sending out-of-hours contact, can you note that an immediate response is not expected (“This is for tomorrow”)? Sentrient’s policy includes this approach.
• How long will a response take? A quick 10-minute task might be assessed differently from something requiring significant time.
• Have you considered the employee’s total workload and additional work hours? This is not a single-event assessment; look at the totality of the person’s contribution and whether they consistently work late nights or weekends.
• Does the employee receive compensation for being required to monitor, read, or respond to out-of-hours contact? This includes leave, time off in lieu, overtime pay, allowances, or other benefits. If the answer is no, this will likely be a “huge problem”.
• Is the employee’s remuneration explicitly linked to covering reasonable additional hours, including out-of-hours work, weekend work, and public holidays? If not, it will be difficult to justify this link later. Linking wages to out-of-hours contact is fundamental to stopping wage theft, one of the underlying principles of the right.
• Has the employee shared personal circumstances (like religious events requiring them to be offline) that would make out-of-hours contact difficult? If so, you need to take these into account.
• Is it essential for the employee to be able to disconnect? Consider whether they work in high-stress roles or industries, or are emotionally or physically burdensome. Someone consistently working excessive hours may have “earned the additional benefit” of being able to switch off. It’s a balancing exercise based on a “holistic assessment”. While payment is critical, the assessment is holistic.
• Are the employees aware that they should be contactable outside working hours? Clear expectations and communication are necessary, especially for junior or new staff. Conversations and planning are essential.
• Is there another person or employee who could be contacted instead? Don’t automatically go to your preferred contact point if someone else is available and appropriate.

The Role of the Fair Work Commission

Following the law’s passage, the Fair Work Commission (FWC) was required to update all modern awards to include a right to disconnect term. The FWC president initiated a significant case for this purpose, involving public consultation. However, the resulting model right to disconnect term in modern awards essentially “regurgitates at a high level” what the legislation already states, offering “not much more” guidance. While some awards (like the Nurses award) include an additional line specifying that being on recall is not unreasonable, others (like the Teachers award) repeat the Fair Work Act’s wording.

Crucially, the FWC is also required to make guidelines about the operation of the right, but there is currently no legislative deadline for these, and no guidelines have been published. The FWC has committed to creating a new bench book that will include details of relevant case law and guidance, but the date for this is unknown.

At this early stage of the right’s implementation, the FWC appears hesitant to provide concrete guidance for specific industries or occupations. They are waiting to receive applications that result in published decisions to demonstrate, on a case-by-case basis, how the criteria for reasonableness will be applied. This approach allows live examples and specific case facts to “mould the underlying principles”. Therefore, much of the understanding of how the right applies in practice will develop through FWC decisions over time.

Real-World Examples: Applying the Test

Let’s look at how the reasonableness test might play out using scenarios similar to those discussed:

Case Study 1

The Nurse (Sam) Sam is a registered nurse on afternoon shifts, working 76 ordinary hours plus eight overtime hours per fortnight. He must be on call on Sunday for a potential 9.5-hour shift and receives a $46.45 on-call allowance for being available at 6:30 a.m. On Sunday, his supervisor texts him to come in for the noon shift due to a need.

• Is it reasonable for Sam to monitor his phone and respond? Generally, yes. Factors include the industry (healthcare), the fact that he receives an on-call allowance for availability, and his recent overtime (8 hours) is not excessive in this context.
• Variation: If Sam had worked 20 overtime hours (96 total) in the fortnight and was asked to work another 10+, potentially bringing him over 100 hours, it would be much riskier to require him to monitor for further work. Burnout is a factor. While industry context (emergencies) still matters, the excessive hours weigh heavily.

Case Study 2

The Project Engineer (Genevieve), a full-time project engineer working M-F, 8:30-5:30, is attending her daughter’s birthday on a Saturday. At 1 pm, she receives a text from a contractor on her project site: unsecured electrical wires are hanging from a pole, and the contractor demands she urgently organise a team to secure them today. The train line is not yet operative.

• Is it reasonable for Genevieve to read/respond and contact others? Generally, yes. Despite it being her time and the train line not running (which is a distraction), this is an emergency safety issue involving live wires. As the project engineer responsible for the site and managing staff, even if not present, she has responsibility.

Case Study 3

The Senior Financial Advisor (Simon), a full-time senior financial advisor working M-F, 9-6, receives an email from his principal at 6:30 pm Friday. The principal needs “quick advice” for an essential client regarding a transaction early next week. Simon has already worked until 9 pm every day that week. A junior advisor is available and competent for the work, though it might take longer.

• Is it reasonable for Simon to read/respond and prepare the advice? Likely no. Factors include Simon’s already significant hours worked that week, and the fact that the advice is needed for a transaction next week, meaning no immediate action is required over the weekend. He could acknowledge the email and state that he will act on Monday.
• Variation: Would it still be reasonable for Simon to say no if the work was needed by Monday at 9 a.m. and the junior advisor was available and appropriately compensated for additional hours? According to the source, yes. This situation relates to workforce planning and appropriate resource allocation.

These case studies highlight that assessing reasonableness is complex and depends on balancing multiple factors.

Practical Steps for Workplaces

To navigate the Right to Disconnect effectively, workplaces should take proactive steps:

• Understand Individual Working Hours: Managers and teams need to know the ordinary hours and variability for all employees, including shift arrangements, casuals, and part-timers, as the right applies outside individual hours.
• Set Expectations: Managers and employees should regularly discuss circumstances where out-of-hours contact might be expected. This isn’t a one-time conversation as circumstances change (e.g., urgent projects). Ideally, these conversations happen before contact is likely.
• Consider Communication Channels: Consider the most effective way to contact someone that minimises disruption (e.g., a quick call vs. a time-consuming email response).
• Prevent Unnecessary Contact: Set reasonable work priorities and targets achievable within working hours to reduce the need for after-hours follow-up. Review workflows and consider organisational changes to improve handover and information sharing. Ensure adequate staffing and planning to handle fluctuations.
• Update Documentation: This is critically important. Review and update employment contracts, position descriptions (PDs), job advertisements, candidate information packs, and performance agreements. These documents should set out roles and responsibilities that may require out-of-hours availability to monitor, read, and respond to contacts. Ensure outdated documents are updated to reflect current requirements. Most importantly, explicitly link employee remuneration to covering reasonable additional hours, including out-of-hours availability. If not linked, it’s harder to argue availability is compensated, which ties into wage theft principles.
• Deliver Training and Have a Policy: While broad employee training isn’t legally required, training for managers, supervisors, and senior HR is crucial. They need to understand what the right is, how to implement it, and how to respond. A policy, such as Sentrient’s comprehensive version, can be a guiding resource to help people make better informed decisions and prevent misapplication of the right by either employees or employers. Updated Work Health and Safety policies can also incorporate the right to disconnect, linking it to managing burnout and stress.

The Adverse Action Risk

A critical point for employers is that you cannot take adverse action against employees for exercising or proposing to exercise their right to disconnect. This is protected under general protection provisions. Suppose disciplinary action follows an employee’s refusal to engage out of hours. In that case, it must be based on their failure to perform the inherent requirements of their role, not because they exercised their right. Clear employment contracts, position descriptions, and remuneration terms that link payment to required out-of-hours availability make this argument easier.

Conclusion

Australia’s Right to Disconnect is not a simple ban but a nuanced approach centred on reasonableness. It aims to protect employees’ time, prevent burnout, and address wage theft. Understanding the specific criteria from the Fair Work Act, considering the detailed practical factors, and proactively updating documentation and providing training are essential for workplaces. As the Fair Work Commission develops case law, further clarity on applying “reasonableness” will emerge. Ultimately, effective implementation relies on open conversations and clear expectations between managers and employees.

FAQs

1. Can my employer contact me outside of my working hours?

Yes, the current law does not prohibit employers or third parties from contacting you or attempting to contact you outside your hours.

2. Does the Right to Disconnect mean I can ignore all emails or calls outside of work?

No, it does not give you an automatic right to ignore contact. However, you can only be required to monitor, read, or respond if it is “reasonable in the circumstances”.

3. What makes an out-of-hours request “reasonable”?

Reasonableness depends on several factors, including the reason for contact, the disruption caused, whether you are compensated for availability, your role, personal circumstances, workload, urgency, and whether clearer expectations were set.

4. Is it important if I’m paid extra or compensated for being available outside of my hours?

Yes, compensation for availability is a crucial factor in assessing reasonableness. If you are not remunerated for being available, this poses a significant problem for the employer seeking a response, as a key principle of the right is preventing wage theft.

5. Can my employer punish me if I exercise my Right to Disconnect and don’t respond to contact outside my working hours?

No, employers cannot take “adverse action” against you for exercising or proposing to exercise your right to disconnect. Any disciplinary action must be based on legitimate reasons related to your role requirements.

6. Has the Fair Work Commission provided detailed guidance on the Right to Disconnect?

The FWC has updated modern awards, but the model terms essentially repeat the legislation. Formal FWC guidelines have not yet been published, as the commission is waiting for case law to develop the principles.