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Sending an email afterhours may soon be illegal

Under the new right to disconnect legislation, an employee may refuse to monitor, read or respond to contact or attempted contact from their employer or a third party outside their working hours unless the refusal is unreasonable.

14 Mar 2024

Catherine Ngo

Content writer, presenter and podcaster

The Closing Loopholes Bill No. 2, including the "right to disconnect", passed parliament on 12 February 2024 and now awaits royal assent. This new right will commence six months after royal assent.

What does it mean for employers? It changes how many employers and employees must approach communicating outside of ordinary work hours. To mitigate any risks, employers must evaluate how introducing this new right impacts their operations and processes.

What is considered reasonable contact?

Whether the refusal is unreasonable will depend on a range of circumstances specific to the nature of the working relationship. Things to consider include:

The reason for the contact or attempted contact;
How the contact is made and the level of disruption it causes the employee;
The extent to which an employee's remuneration compensates them to remain available to perform work during the period in which the contact is made or work additional hours outside their ordinary hours of work;
The nature of the employee's role and their level of responsibility; and
Their circumstances, such as family or caring responsibilities.

Small business employers will be exempt from these provisions for 12 months after the new laws. Exemptions also apply for matters involving Australia's defence, national security or an operation of the Australian Federal Police.

The new right may not automatically stop employers from emailing employees outside of work hours. However, it will form one of the "protected attributes" within a General Protections claim in the Fair Work Act 2009 (Cth) (FW Act) and seeks to protect employees who choose to ignore attempts by their employers to contact them after hours (where this is not unreasonable) from being subjected to detriment (e.g. being disciplined for their performance).

What about employees covered by Modern Awards and Enterprise Agreements?

For employees covered by an enterprise agreement offering a more beneficial right to disconnect clause than the one in the proposed legislation, the agreement's clause will continue to apply.

To ensure modern awards align with the new legislation, a new model term granting employees a right to disconnect must be included.

What if there is a breach?

If employers and employees cannot resolve a dispute about the right to disconnect at the workplace level, they can apply to the Fair Work Commission (FWC) for a "Stop Order".

This will likely operate similarly to the current anti-bullying jurisdiction of the FWC. For employees, this will mean they can apply for an order that their employer stop making unreasonable contact with them (and be prevented from taking disciplinary action against them for their reasonable refusal). Conversely, employers can apply for an order that an employee stop continuing to unreasonably refuse to monitor, read, respond to or attempt contact with their employer.

Breaching a "Stop Order" concerning the right to disconnect may attract civil penalties under the Fair Work Act. The Government introduced a further Bill on 15 February 2024 to confirm that such breaches will not attract criminal penalties.

What should employers do?

Similar "disconnection" rights exist internationally in countries such as Spain and France. This new legislation may seem prescriptive and place unnecessary red tape. However, it should be manageable with the right approach and processes. In some ways, the laws act as an extension of the obligations businesses already have to ensure the psychosocial safety of workers.

Employers should consider how they can update their existing work practices and policies and provide training to managers on the new right. Employers must continue to manage performance management processes carefully, considering the new right.

In consideration of employees' right to disconnect, employers should contemplate the following measures:

Create or revise policies around the use of work technology outside of working hours;
Encouraging line managers to respect employees' boundaries;
Providing training for managers to ensure they are aware of the new right and don't act against employees who are exercising their new right;
Training employees about the new right and what the business is doing about it.
Organising feedback mechanisms for employees who feel the need to work outside of agreed working hours;
Encouraging all employees to schedule any emails and tasks to be delivered during agreed working hours and
Education and awareness on the mental health benefits of disconnecting from work.

Key takeaways

The Right to Disconnect Bill will prevent employers from making unreasonable out-of-hours contact with employees.
Employees can no longer be disciplined for failing to respond to out-of-hours correspondence from their employer unless such contact relates to changes in their rostered hours or they're paid to be on call.
If disputes cannot be resolved, employees can apply to the FWC for an order to stop unreasonable out-of-hours contact.
For large businesses, the right to disconnect will commence six months after Royal Assent.
For small businesses, the right to disconnect will commence 12 months after Royal Assent.