The Right to Not Work: Australia’s Implementation of the Right to Disconnect Law By: Alyssa Lawton

In today’s ever-connected society, it has become extremely easy to connect with others, no matter the time of day. While this has made it easier for friends and relatives to reach out to others whenever they want, it has also made it possible for employers to reach out to employes whenever they want. Various studies have now shown the effects of these blurred lines created by this interconnectivity. In 2022, the Centre for Future Work at the Australia Institute reported that 71% of Australian workers do work beyond their scheduled work hours.[1] The following year, the Institute reported that the average Australian worker works 281 hours per year of unpaid overtime, resulting in $11,055 ASD per year ($7,373.69 USD) in unpaid labor.[2] This additional work not only results in financial losses for employees but also takes a toll on their well-being.[3] The 2022 study found that 35% of workers experience physical tiredness as a result of this extra work, 32% experience stress and anxiety because of the additional work, and 31% feel mentally drained due to their extra work.[4] Australia recently recognized the consequences of such outside work and has passed a law to help curb such work.[5]

On February 12, 2024, the Australian legislature passed the “Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023.”[6] On February 26, 2024, the bill received Royal Assent, making it law.[7] The law came into effect for business of at least 15 employees on August 26, 2024, after the required six-month period between approval and implementation.[8] For businesses of less than 15 employees, the law goes into effect on August 26, 2025.[9] This law provides that “An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.”[10] The law also goes beyond that to allow employees to refuse to respond to work-related contacts from third parties (such as customers) outside of work hours unless the refusal is unreasonable.[11] The carveout relating to unreasonable refusals requires consideration for the reason of the attempted contact/contact, how the attempted contact/contact was made, how disruptive the attempted contact/contact was, if the employee is compensated for the work beyond their normal work hours, the nature of the employee’s work, the employee’s level of responsibility within the organization, the employee’s personal circumstances, and if the contact is required by law.[12] The law also provides for the resolution of disputes regarding this law — an employee unreasonably refusing to work outside of work hours.[13] If an employee allegedly unreasonably refused to work, the law first provides that the dispute is to be attempted to be resolved in the workplace.[14] If this does not resolve the issue, either party may apply to the Fair Work Commission for help reaching a resolution.[15] Overall, the law provides employees the right to only work when they are employed to work, with certain exceptions.

Support of such law is widespread amongst workers.[16] In the 2022 study, researchers found that only 9% of employees thought that such a law would not have a positive impact on their life.[17] When discussing the benefits of such a regulation like the Fair Work Legislation Amendment, workers named a variety of ways they thought their life would be positively impacted.[18] For what they believed would be some of the most positive impacts of such a law, 45% said increased family/social time, 42% said better mental health, 42% said less stress or anxiety, 38% said satisfaction with their job, 34% said better sleep, and 30% said increased productivity during work hours.[19] In all, the majority of employees support the Fair Work Legislation Amendment.

Despite the widespread support amongst employees, various others have expressed concerns over the law. Peter Dutton, the current Opposition leader in the Australian legislature, has vowed that if his party gains control in the next election, they will repeal the regulations created by the Fair Work Legislation Amendment.[20] Dutton expressed concerns that its implementation would lead to decreased productivity by workers.[21] Instead of prohibiting such out of hours contact, Dutton said the focus should be on increasing productivity so that sustainable wage increases can occur.[22] However, of interesting note is that the majority of Dutton’s political party does not agree with him on his opposition to the right to disconnect.[23] A 2024 study found that 66% of Coalition voters support the right to disconnect.[24]Another group against the law is the Business Council of Australia.[25] Business Council of Australia is a political advocacy group in Australia who “represents Australia’s largest employers . . . [and] advocat[es] . . . for good policy on behalf of the business community and the Australians they employ.”[26] The Business Council of Australia’s principal concerns are that the right to disconnect law will create more hurdles for businesses and will result in decreased productivity.[27] With that, the Business Council of Australia also said, “the new changes - coming on top of the raft of recent changes that are already in place, including intractable bargaining and same job, same pay - risk placing more pressure on businesses at the worst possible time.”[28]

Despite the concerns of some Coalition members and certain special interest groups, it appears there is broad support the Australia’s new right to disconnect. As Australia begins to legislatively combat work-life balance issues, one has to wonder if other countries will follow suit.

[1] Eliza Littleton & Lily Raynes, Call Me Maybe (Not): Working Overtime and A Right to Disconnect in Australia, The Austl. Insts. Ctr. for Future Work 4 (Nov. 22, 2022), https://futurework.org.au/wp-content/uploads/sites/2/2022/11/Call-Me-Maybe-Not-2022-WEB.pdf.

[2] Fiona Macdonald, Short Changed: Unsatisfactory Working Hours and Unpaid Overtime, The Ctr. for Future Work at The Austl. Inst. 1, 5 (Nov. 2023), https://australiainstitute.org.au/wp-content/uploads/2023/11/Go-Home-On-Time-Day-2023-The-Australia-Institute.pdf; Wise, AUD to USD Exchange Rate, Wise (last visited Sept. 6, 2024), https://wise.com/us/currency-converter/aud-to-usd-rate.

[3] Supra note 1.

[4] Supra note 1.

[5] Lockton Global Compliance, Australia Introduces the Right to Disconnect After Working Hours, Lockton Glob. News (Aug. 30, 2024), https://globalnews.lockton.com/australia-introduces-the-right-to-disconnect-after-working-hours/.

[6] Id.

[7] Department of Employment and Workplace Relations, Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, Austl. Gov’t, https://www.dewr.gov.au/closing-loopholes (last visited Sept. 6, 2024).

[8] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Austl.), supra note 5.

[9] Supra note 5.

[10] Supra note 8 at pt 8 div 6 sub-div A s 333M (1).

[11] Supra note 8 at pt 8 div 6 sub-div A s 333M (2).

[12] Supra note 8 at pt 8 div 6 sub-div A s 333M (1), (5).

[13] Supra note 8 at pt 8 div 6 sub-div B s 333N, C s 333P.

[14] Supra note 8 at pt 8 div 6 sub-div B s 333N(2).

[15] Supra note 8 at pt 8 div 6 sub-div B s 333N(3).

[16] See generally supra note 1,

[17] Supra note 1 at 29.

[18] Supra note 1 at 29.

[19] Supra note 1 at 29.

[20] Jake Evans, Peter Dutton Vows to Repeal 'Right to Disconnect' Laws if Coalition Wins, ABC News (Feb. 11, 2024), https://www.abc.net.au/news/2024-02-11/peter-dutton-vows-repeal-right-to-disconnect/103453148?utm_source=abc_news_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=other.

[21] Id.

[22] Id.

[23] The Austl. Insts. Ctr. for Future Work, Most Coalition Voters Back Right to Disconnect (Mar. 14, 2024), https://futurework.org.au/post/most-coalition-voters-back-right-to-disconnect/.

[24] Id.

[25] Bus. Council of Austl., New IR Laws to Sap Productivity and Hit the Economy (Aug. 26, 2024), https://www.bca.com.au/new_ir_laws_to_sap_productivity_and_hit_the_economy/.

[26] Bus. Council of Austl., About the Business Council of Australia, https://www.bca.com.au/about (last visited Sept. 8, 2024).

[27] Supra note 25.

[28] Supra note 25.