Right to disconnect

By Resolve Editor, Deb Eccleston

There would be few people in the working world who haven’t been contacted out of office hours. Workplace issues aren’t restricted to 9am to 5pm, particularly in industries that operate 24-7.

And with the rise of working from home (WFH) and hybrid working, the traditional workday looks different for everyone and the line between what’s reasonable and what’s not is increasingly blurred.

The Right to Disconnect laws introduced in August last year go some way to creating clear boundaries and mark a significant change for the Australian Employment Law landscape, according to Gilchrist Connell Principal Joel Zyngier.
 

Employee protection

The Right to Disconnect provides protection for employees to refuse to monitor, read or respond to contact outside work hours from their employer, or a third party if that contact is work-related, unless the refusal is unreasonable. The protection is a “workplace right” for the purposes of the general protections provisions of the Fair Work Act 2009. It does not prevent employers contacting employees out of hours.

“Unless the refusal would be unreasonable, the legislation provides that workplace disputes or disputes about the workplace right to disconnect should be dealt with at the workplace level,” Mr Zyngier said.

“And if it can't be dealt with at the workplace level, parties can make an application for the Fair Work Commission to deal with the dispute – that application can be made by an employer or an employee.

“If the Fair Work Commission makes an order that an employee must respond to the contact from the employer, or that the employer must stop contacting the employee and the party subject to that order contravenes that order, they can be exposed to pecuniary penalties of up to $18,000.”

Which raises the question of what cover is available for these types of disputes under existing insurance policies.
 

Warning signs for insurers

WTW Associate Director Mike Pryce said while there was a limited number of policies that could respond to a direct claim under the new law, there were likely to be related issues – such as harassment – that may be covered by Employment Practice Liability (EPL) insurance.

“If somebody alleges that they're not being allowed to disconnect, what else are they going to allege as a result of that?” Mr Pryce said.

“There is a plethora of issues here that may or may not be covered under insurance policies as they currently exist, but each one demonstrates a behaviour and attitude of the company, and its culture, towards workplace relations.”

Mr Pryce said a series of Right to Disconnect claims would be a clear warning sign of poor organisational culture and an indication of myriad other potential claims arising.

“These are all issues that point to the culture of the organisation and from a coverage perspective, while we have Statutory Liability and EPL policies, there are gaps in coverage, particularly in the defence cost area,” he said.
 

Dispute resolution

While the Fair Work Commission is amending modern awards to include a Right to Disconnect clause with provisions for dispute resolution, Mr Zyngier said it was essential for organisations to have internal procedures in place to deal with any potential disputes.

“Employers should have their own dispute resolution procedures established under policies they have in their workplace so that employees understand what their expectations are,” he said.

“In the event of a dispute, if the employee hasn't followed those internal procedures, it shouldn’t be put forward to the Fair Work Commission. Ideally the disputes would be resolved without having to go to the Fair Work Commission.”

The Right to Disconnect took effect for non-small business employers from 26 August last year. Small business employers with a headcount of 14 or fewer will be subject to the new legislation from 26 August 2025.