Right to Disconnect Laws Passed

On 12 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No 2) Bill was passed by the federal senate. The Bill regulates the circumstances under which employees can be expected to answer work calls or attend to work duties outside of work hours. This page outlines the changes and the public’s reactions to the right to disconnect laws.

Right to disconnect

Under the changes, section 64A of the Fair Work Act will give employees the ‘right to disconnect’ outside of work hours.

That provision contains the following restrictions on contact outside of work hours:

• Employers must not contact employees outside of their hours of work (including periods of leave) unless the reason for the contact is an emergency or a genuine welfare matter or the employee is in receipt of an availability allowance for the period during which the contact is made; and
• Employees are not required to monitor, read or respond to emails, calls or other communications from employers outside of their hours of work unless they are in receipt of an availability allowance for the period during which the communication is made.

Stop orders

When disputes arise between employers and employees about the right to disconnect provision, the employee will be able to apply to Fair Work Australia for a stop order. If a stop order is issued against an employer and the contact outside of work hours continues, the employer may be fined.

The Bill does not impose criminal penalties for breaches of the provision.

Commencement

For most employers, the right to disconnect provisions will come into effect in six months. For small businesses, they will come into effect in 12 months.

Reasons for the changes

In his second reading speech, Tony Burke, Minister for Employment and Workplace Relations said that the laws were essentially being passed because people should be paid when they work.

The changes were originally proposed by Adam Bandt in March 2023 after the tabling of the Senate Select Committee on Work and Care’s Work and Care Report. The committee investigated how Australians combine their work responsibilities with their responsibilities for caring for others.

The report found that ‘availability creep’ had made it common for workers to be expected to perform duties outside of hours. The shift to work-from-home arrangements during the pandemic further blurred the line between work and life outside of work. Among other things, the report recommended that an enforceable right to disconnect be included in the Fair Work Act 2009.  

Bandt’s second reading speech pointed to the increasingly blurred boundaries between work and leisure time and the growing pressure on workers to be available at all times. These trends have been exacerbated by smartphone use, insecure work, and rostering practices that often require workers to remain available and on call.

‘Right to disconnect’ provisions have been introduced in several other jurisdictions including France and Italy. Bandt urged the government to pass the bill in the interest of prompting a healthier work culture.  

Community responses

The right to disconnect provisions have been applauded by employment law and human resource experts who say that availability creep negatively impacts worker wellbeing. The changes have also been supported by unions, employees, and some independent senators. However, the Opposition and some employers have opposed the changes, with Opposition Leader Peter Dutton vowing to repeal the law if elected.   

Criticisms of the laws include that they lack clarity, particularly for sectors such as the tech sector that see themselves as ‘24/7 businesses’, and that they may bring about an end to flexible working arrangements.

It has also been pointed out that despite the wording of the right to disconnect provision if workers are not required to monitor their phones or emails outside of work hours except in relation to emergency situations, they will not be contactable in the event of an emergency either.  

The ACTU has dismissed these criticisms, saying that the laws are very sensible.

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