The ‘right to disconnect’: Will it work and what does it mean?

Since the pandemic, where working from home became the norm, the boundaries between work and personal time have become increasingly blurred. Having a smartphone has also meant we are contactable from anywhere, anytime.

As of 26 August 2024, there will be significant changes to workplace laws— a legislated right for employees to ‘switch off’ from work outside of their normal work hours.

We spoke to an expert on the matter, Director of Pragma Lawyers and Norfolk Workplace Consulting Elizabeth McLean who calls the legislated right for employees to switch off “The Right”.

“The pandemic saw a huge rise in work from home. This led to what the unions call ‘availability creep’ or the ‘always on’ mentality,” Ms McLean told us.

The Right followed the Productivity Commission’s research conducted as part of its working–from–home paper delivered in September 2021 following calls from unions, aimed at protecting our precious personal time and improving our work-life balance. It means employers have to respect their employees’ personal time and consider whether out-of-work hours work communications are reasonable and necessary. Essentially, employers will breach the law if they penalise employees for refusing to monitor or respond to unreasonable contact made outside of normal working hours.

“The Right promotes a shift in thinking away from the ‘always on’ mentality [and] towards recognising that balance and downtime are important for sustaining employee engagement and productivity,” Ms McLean said.

Interestingly, despite polling by the Australia Institute’s Centre for Future Work showing that 75 per cent of respondents support the Right to Disconnect, the law has sparked substantial controversy. This stems from the clash with current legal norms where employees are expected to work ‘reasonable additional hours’ as outlined in most employment contracts and workplace law. Employers must now navigate balancing operational needs with the new requirements, and ensuring they do not impose unreasonable demands that infringe on employees’ rights to disconnect.

“Employers already have a duty to provide a safe workplace which includes one free of psychosocial hazards such as unreasonable job demands, stress and burnout,” Ms McLean said.

“It has never been more important for employers to provide a respectful and supportive workplace which focuses on employee wellbeing. The Right to Disconnect is a further example of this societal change.”

The benefits of the Right to disconnect are many, from the protection for employees of exploitative employers to promoting rest and recovery, but there are some potential drawbacks.

“We may see some employers mishandle the new laws, and use it as a reason to reduce flexibility, which has become common in Australian workplaces since the Covid pandemic—a return to rigidity in fear of not getting the job done within ‘normal working hours,” Ms McLean said.

Additionally, McLean said that with additional regulation comes big questions: “Businesses are asking, and an issue which remains to be seen, is will productivity drop and flexibility suffer?” Along with: Will compliance costs rise, having a negative impact on business, particularly small businesses? Is this risk outweighed by the protection of employees of those few businesses which exploit staff? Do we need legislation for something that should be managed through common sense and general respect?

Perhaps, the response to these questions should focus on the opportunities that come from the introduction of the Right, an opportunity to create a better workplace.

“Imagine if we could all truly switch off on annual leave, without worrying if the WIFI will be adequate to ensure we can continue reading and sending emails,” Ms McLean said.

“We might be less stressed; we might be more present for our family and friends.”

It seems that the Right will work well for employers who are already conscious of boundaries and encourage their clients to be the same.

“If employers aren’t already doing this then they will probably struggle to attract and retain talent anyway,” Ms McLean said.

Takeaway: Some practical tips for employers:

• Don’t contact employees out of hours when it’s not urgent.

• If you must, don’t do it in an intrusive way. Send an email, don’t phone or text.

• When you must email an employee out of hours, tell them you don’t expect an answer until the following day.

• If you do need an answer outside of hours, explain why.

• Provide training to your managers on reasonable work demands and respecting work / life boundaries.

• Consider a workplace policy that provides parameters on The Right. Ensure your employment contracts and position descriptions are up to date and make it clear when a position will require out-of-hours work or being ‘on-call’.

• If you are approaching a busy period, warn staff that there might be some out-of-hours work and consider giving them some time back when things quieten down. Successful employee relations is about reasonable give and take.

“The world of work has been heading in this direction for some time now. If your business hasn’t jumped on that train, now is the time,” Ms McLean averred.

Upcoming workplace law changes will impact your business. For help navigating everything employee relations including maintaining a productive workforce in light of the ‘Right to Disconnect’ and other workplace changes, contact Norfolk Workplace Consulting for expert guidance. You can visit their website for more information.