Switching Off: Navigating Australia’s new ‘Right to Disconnect’ Law

Australian workers can now exercise a legislated right to ‘switch off’ from after-hours work communication with ‘right to disconnect’ laws now in effect. The introduction of the federal law marks a significant shift in the landscape of work-life balance and digital connectivity.

The law aims to protect employees from unreasonable out-of-hours contact and empower people to refuse work communications outside their designated working hours unless such refusal is deemed unreasonable.

While the right to disconnect laws are a step forward, the effectiveness of these laws will largely depend on their enforcement and a cultural shift within workplaces.

A middle ground approach

Professor Graeme Orr, a labour law expert from The University of Queensland’s Law School, noted that Australia’s new legislation is a middle ground between the stringent regulations seen in some European countries and the more relaxed approaches in other parts of the world.

“Australian laws will not be strong by European standards, but not as laissez-faire as the United Kingdom or United States at present,” Professor Orr said.

For instance, countries like France and Portugal have some of the strongest ‘right to disconnect’ laws. In France, the legislation mandates that companies with more than 50 employees must negotiate terms with their staff regarding the use of digital tools to ensure respect for restful periods and personal life. ?

Portugal goes a step further, imposing fines on all but small businesses that unnecessarily contact employees outside of working hours.

In contrast, the United Kingdom’s approach is largely unregulated with no specific legislation addressing the right to disconnect. Similarly, the US lacks federal laws on this issue, leaving it to individual states or companies to set their own policies.

Enforcement challenges

One of the critical challenges with Australia’s new laws is enforcement. As the law currently stands, the responsibility is on the employee to contest what they perceive as ‘unreasonable’ contact through the Fair Work Ombudsman.

Professor Orr identified that this may be problematic, as it places the burden on employees to assert their rights, potentially putting them in a vulnerable position. Without a union presence or proactive leadership from management, employees may feel targeted for raising concerns.

“If employers don’t modify their work culture, little will change.???

“Comparatively, Portugal will fine businesses if they unnecessarily contact workers out of hours expecting responses, which creates a more supportive environment for employees to exercise their rights without fear of retaliation.

“Unless there is a union present, or leadership from management, the Australian law risks putting a target on an employee's forehead,” Professor Orr said.

For Australia’s laws to be effective, Professor Orr emphasised the need for a cultural shift within organisations, where the responsibility for compliance is shared between employers and employees.

The role of industry-specific rules

Another crucial aspect of the new laws is the need for industry-specific rules.

While the general principles of the ‘right to disconnect’ legislation are reflected in Industry Awards which commenced on Monday 26 August, Professor Orr identified that the Fair Work Commission will need to develop specific guidelines tailored to different sectors.

“This is essential because the nature of work varies significantly across industries. For example, the demands on academic staff during exam periods are very different from those on general office workers or emergency medical personnel,” Professor Orr said.

Industry-specific rules can help ensure that the law is applied practically and fairly for all parties involved. The process will require ongoing consultation between the Fair Work Commission, employers, and unions to develop and refine guidelines over time.

The competitive landscape

“Even well-meaning employers may be reluctant to change their workplace culture if their competitors do not follow suit,” Professor Orr said. ?

“This could create a race to the bottom, where businesses seek to maintain high levels of employee availability to stay competitive. To address this, there needs to be a collective effort across industries to embrace the new laws and foster a culture that values work-life balance.”

Leadership from industry bodies and large organisations can play a pivotal role in setting the standard and encouraging others to follow. By demonstrating the benefits of a healthy work-life balance, such as improved employee well-being and productivity, industry leaders can help drive the cultural change needed for the laws to be effective.

Find out more about Professor Graeme Orr