From today, millions of Australian workers can refuse to respond to their employers outside of work hours as landmark right to disconnect laws come into effect.

Under the new laws, workers of non-small businesses have the right to refuse contact outside their working hours – including texts, calls and emails – unless the refusal is unreasonable.

While aimed at giving workers a greater work-life balance, the right to disconnect does not impose a blanket ban on bosses contacting employees. Instead, it simply gives workers the power to decide whether to respond out-of-hours, based on the reason and level of disruption it causes. However, factors that could deem contact reasonable include the level and responsibility of the employee’s role and any extra relevant pay or compensation received for working additional hours or remaining available.

The ACTU, which pushed for the reform along with unions such as the ANMF, said the new rights are expected to reduce the amount of unpaid work hours Australians currently perform, which the Centre for Future Work estimates at an average for each worker of 5.4 hours per week or 230 hours a year, equating to $131 billion in unpaid work annually.

“Australia has reclaimed the right to knock off work,” ACTU President Michele O’Neil said.

“The union movement has won the legal right for Australians to spend quality time with their loved ones without the stress of being forced to constantly answer unreasonable work calls and emails.

“The right to disconnect is a cost-of-living win. The average person does five to six hours of unpaid work every week. Thanks to the introduction of this new law, Australians can now be paid for those hours of work.”

All modern awards, including the Nurses Award 2020 (Nurses Award) now include a ‘right to disconnect’ term. The changes, carried out by the Fair Work Commission, were enabled as part of the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024, passed in February.

Who does the legislation apply to?

These laws will only apply to workers covered by the Fair Work Act 2009 (Cth). For ANMF members, this will broadly include:

• all employees in the ACT, the NT and Victoria; and
• in all other jurisdictions, all employees in the private sector
  
  

In advocating for the right to disconnect in nursing and midwifery, the ANMF argued that healthcare sectors differ from other parts of the workforce for two reasons:

• The work of nurses is care-based, so work cannot typically be performed remotely, as it requires direct contact with patients. “In this sense, the experience of nurses and midwives is largely disconnected from the more recent working from home phenomenon turbocharged by the COVID-19 pandemic, which in turn has driven the push for a right to disconnect.”
• The healthcare sector operates on a 24-hour basis. The Nurses Award is unique when compared to many other modern awards in that it explicitly facilitates employer contact outside of rostered working hours in a structured way. This includes clauses allowing an employer to require an employee to remain on-call, for which the employee receives a daily allowance, and an employer being able to recall an employee to work even when that employee is not on-call.
  
  

The ANMF highlighted that the ability for an employer to recall an employee who is not on call “flies in the face of the underlying assumption of the right to disconnect”. It argued that work performed in a 24-hour environment, such as healthcare, should be structured in a way that limits the need to recall employees to work, particularly those not on call to begin with.

Recently, the proposed Victorian public sector nurses and midwives 2024-28 agreement also included a new right to disconnect clause outlining procedures that specify the order of shift actions an employer must take to fill a shift.

Marking the start of the new laws today, Employment and Workplace Relations Minister Murray Watt said the new laws would help workers balance life and work.

“Clocking off used to mean something in this country,” Minister Watt said.

“It meant time with your kids, time with your friends or just time to yourself to relax. But technology has changed how many Australians work. Many workers feel pressured to remain connected to their emails and calls long after they have finished their workday.

“It should not be controversial that workers shouldn’t be required to do unpaid overtime. The right does not prohibit employers or employees contacting one another. It just means, in most circumstances, an employee does not need to respond until they are back at work.”

As the new laws take effect, Fair Work Ombudsman Anna Booth encouraged employers and employees to talk to each other about after-hours contact and set expectations suited to their specific workplace and the employee’s role.

“We encourage workplace participants to educate themselves on the right to disconnect and take a commonsense approach to applying it within their workplace,” Ms Booth said.

“It will be ideal if employers consult with employees and their unions on the policies that apply in the workplace.

“All modern awards now include a ‘right to disconnect’ term. This means that specific rules are now in awards for how the new right applies to different industries and occupations.

“Like most employment matters, any dispute should first be discussed and sought to be resolved at the workplace level.

“If that resolution does not occur, the Fair Work Commission (not to be confused with the Fair Work Ombudsman) can deal with disputes regarding the right to disconnect.”

More information about the Right to Disconnect is available on the Fair Work Ombudsman’s website.

The Department of Employment and Workplace Relations provides a factsheet here

The Fair Work Commission has also produced educational materials about the right to disconnect.