Australia: Employees have the right to disconnect

On 26 August 2024, amendments to Australia’s Fair Work Act 2009 (“the Act”) came into effect, granting employees a legal right to ignore work communications sent outside of working hours. According to section 333M of the Act, an employee may refuse to monitor, read, or respond to contact or attempted contact from an employer outside of their working hours, unless the refusal is unreasonable. An employee may similarly refuse to monitor, read, or respond to contact related to their work from a third party. The Act includes matters to be considered when assessing whether the refusal was reasonable or not. This includes, amongst others, the reason for the contact, how the contact was made, and the nature of the employee’s role. This right is only applicable to employees working in businesses with over 15 employees.

Should employees or employers have disputes which arise from this new right, section 333N of the Act requires them to, in the first instance, attempt to resolve the dispute through internal discussions. Should this fail, either of the parties may apply to the Fair Work Commission to resolve the dispute. The Fair Work Commission is empowered to order the parties to stop doing the offending conduct, or otherwise deal with the matter, such as through arbitration.

The right to disconnect has been similarly introduced in other countries around the world. In 2023, the Kenyan senate passed the Employment (Amendment) Bill 2022, which includes a provision that states that employees have the right to disconnect from their employers, and obliges employers to set up a policy regarding communications outside of working hours. While Kenya would be the first African country to explicitly introduce this right in law, the National Assembly, Kenya’s other legislative chamber, voted the Bill down in March 2024, and a mediation committee of members from both chambers has been tasked with trying to develop a revised Bill.

Nonetheless, it is expected that the number of countries who have introduced such provisions will continue to increase.

• Australia’s Fair Work Act 2009 is available here.
• The Kenyan Employment (Amendment) Bill 2022 is available here.

Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].