With the Right to Disconnect legislation set to be implemented in just a few months’ time, an expert on the matter clears up some common misconceptions about what the changes will mean for businesses.

As of 26 August this year, a new Right to Disconnect entitlement will be added to the Fair Work Act. 

For small businesses (those with less than 15 employees), the legislation will come into effect in August 2025.

However, for all other businesses, there are just a few months left to ensure your processes are compliant and in line with the new legislation.

Below, HRM speaks with expert Dr Gabrielle Golding, Senior Lecturer at Adelaide Law School, about some common myths about this new legislation and easy steps employers can take to prepare.

Myth #1: Employers can no longer contact employees after official work hours

In some instances, the narrative around the Right to Disconnect legislation has been that employers will no longer be able to contact employees out of hours, but that’s not necessarily true.

While it’s certainly best practice for employers to avoid sending a barrage of emails at 10pm, this new rule doesn’t mean employers will be penalised for accidentally hitting ‘send’ instead of ‘schedule’ on an email.

“It’s not like there’s a penalty for someone who sends an email out of normal working hours. It just means the employee carries the right not to respond. And if they exercise that right, they can’t be penalised for it,” says Dr Golding.

Employers will still be able to exercise “managerial prerogative”, she says, meaning there will be instances where it’s reasonable for them to contact employees out of hours and expect a response.

For example, the Fair Work Commission (FWC) may deem it ‘reasonable’ to expect a response from the employee if they’re on call or have a specific provision in their employment contract that extends their employment hours.

“Provided they are compensated appropriately for that,” she says.

Employers may also contact employees out of hours to discuss changes to shift times or any other operational notices that can’t wait until the following work day, such as notice of an office closure. The Right to Disconnect legislation itself sets out matters to be taken into account when determining reasonableness.

Myth #2: This rule only extends to employers

The Right to Disconnect not only encompasses communication between an employer and employee – it also includes communication from third parties.

“That could be a client or customer of the business in which the employee is working. Essentially, it’s the exact same right for the employee to be able to disconnect or not respond to that communication outside their normal working hours,” says Dr Golding.

This will be important to note for employers who provide services to clients and customers. It might be wise to consider communicating with  these third parties ahead of the legislation taking effect so they know what to expect. 

This may be especially important for those working with global clients or customers who may not be across legislative changes in Australia.

Myth #3: Only employees can raise a dispute

A dispute can be raised by either an employee or an employer, says Dr Golding.

“It could be something like the employee raising concern that perhaps they haven’t been afforded the Right to Disconnect or they’ve been treated adversely because of exercising [that right].

“An employer could similarly raise a dispute. They might say something like, ‘You’ve been incorrectly exercising a Right to Disconnect when, in actual fact, you’re required to respond to these kinds of communications because you’re on call,’ for example.”

The resolution process will look similar to any other workplace dispute, says Dr Golding.

“The first step happens at a workplace level with a conversation between the employer and the employee. The Act mandates that this happens first and I would hope the dispute is resolved [at this level].”

If it’s not resolved, one of the parties can bring an application for a stop order to the FWC, such as would happen in the case of a stop bullying order.

“That could be either that the employer stops engaging in contact or conduct that potentially infringes the Right to Disconnect or, on the flip side, that the employee ceases engaging in activity that’s not akin to the Right to Disconnect. Perhaps that’s ignoring calls when they shouldn’t be. And then, at that point, the FWC will have to decide whether or not to grant a stop order.”

If an order is granted, and the behaviour is continued from either party, that’s when civil penalties could come into effect for employers or disciplinary actions for employees. 

“It’s not like there’s a penalty for someone who sends an email out of normal working hours. It just means the employee carries the right not to respond.” –  Dr Gabrielle Golding, Senior Lecturer, Adelaide Law School

The maximum penalty for employers who breach a stop order is $18,784 for an individual per contravention and $93,900 per contravention for a company or employer.

“So, if there are a few employees with a few stop orders, the potential penalty amounts are quite high. That should be quite a significant deterrent for employers.”

Importantly, even when a stop order is in place, that doesn’t mean employees can’t file another application under the Work Health and Safety legislation, says Dr Golding.

“There’s a lot more being written about now in terms of codes of practice around psychosocial hazards at work. And so an employee could, alongside an application like this, make an application for a breach of the Work Health and Safety Act to say that in continually contacting them or expecting responses, the employer has breached their duty of care.”

Another thing to consider is the discrimination legislation that protects employees from being treated differently should they exercise their Right to Disconnect.

“Any infringement of that could result in an adverse action claim,” she says.

Myth #4: It will mean the end of flexibility

Since the Right to Disconnect legislation was first floated, many groups claimed it was too prescriptive and could mean a step back for flexible work practices. 

Instead, some want to see disconnection agreements made at an organisational level to account for the unique nature of different work environments.

In fact, AHRI’s December Quarter 2023 Work Outlook report found that four in 10 employers have already implemented such policies in their workplaces.

Read a case study about how Victoria Police implemented a Right to Disconnect.

However, Dr Golding believes this legislation can co-exist with our steps towards a more flexible working future.

“One doesn’t cancel out the other; the two need to operate alongside one another.

“What I’ve found in my research is that working flexibly is great up until a particular point, at which you might then be infringing on the ability to disconnect because of the flexibility that’s been afforded to you. So there’s got to be a limit on it.

“There has been a bit said… about the fact that this will set women back if they’re in caring roles, for example.”

But this legislation isn’t restricting anyone who chooses to work in the evening or on weekends to account for flexibility afforded elsewhere in their week to, say, pick up children or care for elderly parents. It simply means utilising the ‘schedule message’ function so their preferred working hours don’t interrupt someone’s preferred down time.

“I have read some articles in the media that suggest allowing employees to disconnect means they’ll become less productive – that they won’t be punching out as many outputs, for example, and KPIs will start to drop. But [some] research suggests that just simply isn’t true. That in fact, you get more efficiency out of people.

“For us here at the law school, we’ve got a Right to Disconnect guideline that we work by and we’ve got a lot of people who work flexibly. We just have agreed-on communication hours, so we will email between ourselves as staff, and with our students, between the hours of 8:30am and 5:30pm on weekdays, excluding public holidays, and that has worked fine.”

How can your business prepare?

Dr Golding suggests employers start by doing an audit of current work hours and communication needs.

“For example, do you have employees working overseas or remotely who work at odd hours? Underpinning that, it’s important to understand what the normal working hours of your employees are. Be clear on that and then generate a policy document around the Right to Disconnect. 

“That would be very helpful to get on the front foot, so employees are clear on what it means to exercise their Right to Disconnect, and also what it doesn’t mean. [This way] they don’t risk potential recourse from their employer for exercising a right as they see it, but it isn’t actually in reality.”

Other steps she suggests considering include:

• Creating a process for on-call allowances and overtime pay for the instances that require employees to be contacted out of hours.
• Identifying what might constitute reasonable out-of-hours communications, such as needing to change shift times or communicate about work locations, for example.
• Making sure managers lead by example. They need to model the right behaviours in their own habits around emails and phone calls out of hours and outline communication guidelines to clients and customers.

“[Out-of-hours-communication] has become part and parcel of the way work has been done, especially since the pandemic. So to break those habits, it’s going to take some time and reflection on how communication practices occur.”

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