The Law
Under amendments to the Fair Work Act 2009, employees in Australia are being given a new “right to disconnect” from the workplace outside of normal working hours. Under the new law, employees may refuse contact, including refusing to monitor, read or respond to contact from the employer or a third party outside of working hours unless the refusal would be “unreasonable.”
While “contact” is not defined in the legislation, it is likely to include any form of contact including email, text or social media messages (e.g., WhatsApp) and phone calls.
The law contains a nonexhaustive list of factors that should be considered when determining whether an employee’s refusal is “unreasonable,” including:
- The reason for the contact
- Whether the employee is compensated or paid extra for being available to be contacted to perform work within a specific period or working additional hours outside of their ordinary working hours
- The nature of the employee’s role and level of his or her responsibility
- The employee’s personal situation such as family or caring responsibilities