Earlier this year, the second tranche of the Federal Government’s significant workplace reforms passed into law, bringing major changes for employers. The reforms, in combination with those passed in late 2023, introduce landmark change to Australia’s employment laws for employees, employers, independent contractors, gig workers and principals of most Australian workplaces.
One key and highly controversial component of the reforms is the introduction of the workplace right to disconnect.
Following its introduction on 26 August 2024 for non-small businesses and 26 August 2025 for small businesses (being those with fewer than 15 employees), the right to disconnect is included as a term in all modern awards and explicitly protected under the Fair Work Act 2009 (Cth) (FW Act).
This article will explore the impact of the right to disconnect in legal practice and discuss some simple steps that can be taken to meet the new requirements.
What is the right to disconnect?
The right to disconnect is a new workplace right that allows employees to ‘refuse to monitor, read or respond to communications, or attempted communications, from their employer, third parties, or other employees, unless their refusal is unreasonable’.
This right applies to any form of communication, such as emails, texts, calls or work-related messaging platforms. The right to disconnect is entrenched in both section 333M of the FW Act and all modern awards.
What is an ‘unreasonable’ refusal?
The right to disconnect will not apply when the employee’s refusal is ‘unreasonable’.
Although no exhaustive list of considerations is outlined in the new provisions, the below factors must be considered:
- the reason for the contact;
- how the contact is made;
- how disruptive the contact is to the employee;
- whether the employee is compensated or paid extra to remain available to work during the required period or for working additional hours outside of their ordinary hours of work;
- the nature of the employee’s role and their level of responsibility;
- the employee’s personal circumstances, including family and caring responsibilities.
Can lawyers reasonably refuse to be contacted after hours?
Concerns have been raised about the applicability of the right to disconnect in the legal industry given the often high demands of clients and the courts and the urgency in which important legal issues must be addressed.
The right to disconnect will not change the common practice in most firms of emailing employees outside of working hours on the shared understanding that a response is not required until the employee recommences their usual working hours. It will also not prevent employers from contacting employees where urgent issues arise that require a timely response, even outside of working hours.
It is important to note that the right to disconnect is comprised of two separate rights, being:
- The right to refuse to respond to contact from an employer; and
- The right to refuse to respond to contact from a third party (ie, a client).
We expect it is the latter that will cause most issues for law firms, due to the high expectations of clients and the firm’s desire to meet those high expectations. However, there will be occasions where partners may need to intervene if clients or other third parties continue to unreasonably contact employees outside of working hours expecting an immediate response, in circumstances where the employee has expressed concern about the contact.
The nature of the employee’s role and responsibility will greatly impact the ‘reasonability’ of the employee’s refusal. For example – if an employee is paid award rate or minimum wage, out of hours contact is more likely to be ‘unreasonable’. In legal practice, this may translate to administrative or junior staff.
However, for employees whose salaries reflect the expectation to work reasonable additional hours and/or overtime, ‘reasonability’ of out-of-hours contact is likely to increase.
Ultimately, consideration should be given to the nature of the request. For example, if it is a non-urgent query with no inherent deadline, requesting responses outside of the lawyer’s ordinary hours may be unreasonable. However, if the query is truly urgent, then outside of hours contact and response may be required to resolve an urgent issue or to meet a deadline.
How are disputes about the right to disconnect resolved?
As the right to disconnect is a protected workplace right under Part 3-1 of the FW Act, an employer must not take adverse action against an employee for reasonably refusing contact outside of work hours.
Disputes about an employee’s right to disconnect must be attempted to be resolved at a workplace level in the first instance. If a dispute cannot be resolved, either party may apply to the Fair Work Commission, who may make orders including:
- preventing an employee from unreasonably refusing contact with their employer
- preventing an employer from contacting an employee outside of work hours
- preventing an employer from taking disciplinary action against an employee for refusing contact outside of working hours.
Steps firms can take now
To assist the parties understand what is reasonably expected of them in light of the new right to disconnect laws, employers should consider:
- reviewing current employment contracts within the workplace to incorporate any expectations or requirements of after-hours availability;
- reviewing employee remuneration to ensure adequate compensation is paid if they are expected to remain available after working hours;
- establishing effective protocols and communication strategies with employees to clearly identify urgency and importance based on client needs;
- establishing a right to disconnect policy and communicating the requirements within the workplace;
- alerting managers and leaders to the change, including providing appropriate training on the right to disconnect protection;
- the use of technology to implement the right to disconnect, including updating email signatures and voicemail to identify working hours and likely response times or setting up email systems that identify truly urgent issues.
Authored by Belinda Winter, Partner at Cooper Grace Ward and Chair of the QLS Wellbeing Working Group, and Elaina Betzel, Lawyer, Cooper Grace Ward.
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