New disconnect law is ‘good news’ for bosses

The new law allowing workers to disconnect takes risk out of the employer’s duty of care for remote workers, says legal expert

Disconnect from work. Picture: iStock

Australia’s controversial new right to disconnect law should be welcomed by employers because it also recognises the extent of their after-hours duty of care, ­according to legal academic Dr Gabrielle Golding.

The Adelaide University law lecturer says it’s worth looking at the law, which has provoked an outcry from employers, from both sides.

As the Labor government moves to reassure bosses they won’t face criminal penalties from the Fair Work Commission, Golding says: “It’s easy to look at it from an employee’s perspective and see it as quite one-sided. But if a duty of care extends to wherever an employee is performing work, and that is happening, continually and constantly out of hours, then that creates quite a bit of risk for employers as well.”

Golding argues the right to disconnect is a case of the law finally catching up with the huge shift in our work patterns, including hybrid work and increased access to technology.

“A recognised limit around when work is performed actually creates a safeguard for employers because it’s limiting their potential liability,” she tells The Deal.

In a journal article, published before legislation was mooted, Golding looked at other ways right to disconnect could be introduced, such as via individual company policies.

She argued that “the consequences for employers could be incredibly risky and expensive without a right to disconnect – without a direct recognition of the right … employers may expose themselves to increased risk of liability for a breach of the duty of care that they owe to their employees”.

Golding says an employer’s duty of care operates far more comfortably when an employee works during normal working hours and in a formal workplace setting.

But the responsibility, for example, to ensure the psycho-social health of workers becomes more complicated if workers are operating from home and during poorly defined after-hours time frames.

“Absent a right to disconnect, there are ­significant risks for employers who permit employees to perform work outside their premises and outside of normal working hours,” she argues.

“By allowing (sometimes even encouraging) employees to be always ‘on’ and connected to their work, employers may expose themselves to significant legal risk because of broadening the scope of their duty of care wider than they may have ever intended or contemplated.”

Formally recognising a right to disconnect – whether through law or individual policies – is of the “utmost necessity for employers” so that they can minimise potential legal risk over the duty of care responsibilities, she says.

Golding has been researching the legal issues around right to disconnect since 2022, after seeing the extra work Australian employees were performing as they emerged from lockdowns even more connected to technology.

“I started to think, surely there’s got to be something to combat that,” she says.

“As things stand, the ‘availability creep’ that was happening at that time has ­continued.”

Employer groups have argued the disconnect right will hinder workers’ new-won flexibility, but Golding argues we are finally seeing the law catch up with the “new normal” of remote and hybrid work. It’s really recognising when work is being performed, and ensuring people are paid as such, she says.

“It’s really bolstering where we’re at in contemporary society with the way technology has gone and with the way that people are performing work.

“There has been a lot of shifting of expectations and standards as a consequence of the pandemic. We have adapted a great deal, but (now it’s time) for the law to catch up.

“I think perhaps one of the great wins here is that people will start to claw back their time and realise there is much more to life than being chained to a desk and working and being constantly connected.

“Finally, the law has caught up with our contemporary way of working and particularly since we all have a device at hand, we all have access to tech and laptops at home. Since the pandemic, so much work has been done from all sorts of locations. The law has finally been able to catch up and recognise when people are performing work and allowing them to be properly compensated for that.”

Dr Gabrielle Golding

Golding points to exemptions in the legislation which will still allow employers to contact workers after hours. Under the law, which will take between six and 18 months to come into force for companies, depending on their size, an employee who feels oppressed by after-hours contact will be able to seek a “stop” order from the Fair Work Commission.

The legislation allows for employees and employers to be fined if they ignore commission orders but the government said on Thursday that it will remove criminal provisions before the law comes into force.

Employers are concerned the right to disconnect will be used by disaffected employees to argue that they have been dismissed, for example, because they refused to pick up the phone after hours. On the flip side, Golding says: “Let’s say, for example, you had a particularly aggressive boss who was asking you to check documents, asking you to provide feedback on certain things outside of hours and that was happening continually, then an employee (could ask for) a stop order.”

The right to disconnect comes at a time when workers have grown used to working patterns that on one hand encourage a 24/7 commitment but on the other allow for more physical freedom from the workplace.

The first disconnect laws were introduced in France in 2017 but were slow to take effect and arguably have been rendered less necessary because of the pandemic-inspired work revolution. Indeed, Golding says there has been only one prosecution of an employer in France, although other cases may have been settled out of court.

The French law does not go as far as the new Australian legislation; it stipulates employees have a right to negotiate a disconnect policy with their bosses but does not proscribe the policy detail.

Until now, managing after-hours work has relied on the concept of maximum working hours in the Fair Work Act and the requirement that extra hours requested by a boss must be “reasonable”.

But as Golding says, no one really knows what “reasonable” means because it is not spelled out in legislation and is determined on a case-by-case basis when issues are taken to the commission.

The right to disconnect will still be determined by the “reasonable” test but, arguably, the law gives more power to the employee to decide that for themselves initially, while knowing they are legally protected if they refuse to “monitor, read or respond to contact, or attempted contact, from an employer (or a related third party) outside of the employee’s working hours unless the refusal is unreasonable”.

A number of factors can be considered when determining what is reasonable – such as the level of remuneration and res­ponsibility of the employee or their caring ­responsibilities

Other countries with right-to-disconnect laws include Spain, Italy and Germany.