When the Right to Disconnect was introduced in Australia, there was plenty of discussion about what it would mean for employers and employees.
Could an employer still send an email after 5pm? Could a manager text an employee on their day off? What about genuine emergencies? And did employees now have an absolute right to simply ignore their employer outside their ordinary working hours? We now have some useful guidance.
Australia's first published decisions considering the Right to Disconnect have been handed down by the South Australian Employment Tribunal, providing some important guidance about how the Right to Disconnect operates in practice. They are also an important reminder that the right is more nuanced than many employers, and employees, may think.
What happened in the first Right to Disconnect cases?
The cases involved two apprentices employed by a South Australian hair salon. Among a number of workplace complaints, the employees alleged that their employer had breached their Right to Disconnect.
The Tribunal heard evidence that the salon owner regularly contacted the employees outside working hours, including through TikTok and Snapchat. Some of the communications related to work, while others related to the owner's personal life. One employee said that when she did not respond, the owner would be in a bad mood and ignore her at work.
On another occasion, the employee was asked to take the salon's work phone home over a long weekend and monitor messages without additional payment. She agreed to take the phone but made it clear she would not monitor it. There was no apparent consequence for her refusal.
The second employee similarly described regular out-of-hours contact, including on days off, while attending trade school and while she was unwell or on leave. Both employees said they felt pressure to respond.
What did the Tribunal decide?
Importantly, the Tribunal accepted that the employees felt pressure. But pressure was not enough.
The relevant Award provision prohibited the employer from directly or indirectly preventing an employee from exercising their Right to Disconnect.
The employees had, at times, chosen not to respond. One had refused to monitor the work phone over the weekend. Despite the employer apparently expressing displeasure when messages were ignored, there was no further consequence.
The Tribunal therefore found that the employer's behaviour may have discouraged the employees from disconnecting, but it did not prevent them from doing so.
The Right to Disconnect claims were dismissed.
Can employers contact employees after hours?
Yes, but this is where the Right to Disconnect laws are often misunderstood.
The Right to Disconnect does not create a blanket prohibition on employers contacting employees outside their working hours.
Rather, under the Fair Work Act 2009, an employee has a workplace right to refuse to monitor, read or respond to contact, or attempted contact, outside their working hours unless that refusal is unreasonable.
Whether a refusal is unreasonable depends on the circumstances.
Factors can include the reason for the contact, how the contact is made and the level of disruption it causes, whether the employee is compensated for being available outside their ordinary hours, the nature of their role and responsibilities, and their personal circumstances.
Context matters.
A text to advise an employee of an emergency change to tomorrow's shift is very different from repeatedly contacting someone at 10pm about something that could easily wait until morning.
Similarly, expectations placed on a senior executive may be very different from those placed on a junior employee who is not paid or otherwise compensated to be available outside their working hours.
Where employers need to be careful with after-hours contact
The most important part of these decisions may not be that the employer successfully defended the Right to Disconnect claims, but rather why they were able to.
The employees were able to ignore the contact without any meaningful consequence.
Change that fact and you may change the outcome.
If an employee doesn't answer an after-hours message and is subsequently disciplined, disadvantaged, given fewer shifts or otherwise treated adversely because they exercised their workplace right, the risk becomes considerably greater.
Employers also need to think beyond what they formally tell employees.
You may not have a written rule saying employees need to answer emails at night. But if the workplace culture tells a different story, there may still be a problem.
If managers routinely send messages late at night or on weekends and expect immediate responses, employees are questioned the following morning about why they didn't answer, or responsiveness outside working hours is treated as a measure of commitment, an expectation of constant availability can develop very quickly.
That culture could become problematic.
Our view: Don't confuse what you can do with what you should do
This is where we think employers need to be careful. These decisions should not be interpreted as a green light to contact employees whenever you like because "pressure isn't prevention". That misses the point.
There is a difference between conduct that doesn't quite reach the threshold for a legal contravention and good people management. We regularly tell employers that compliance is the floor, not the ceiling.
The better question isn't simply: "Am I legally allowed to send this message?"
It is: "Does this actually need to be dealt with now?"
Sometimes the answer will absolutely be yes. Businesses don't stop operating because it is after 5pm. Emergencies happen. Rosters change. Clients have urgent issues. Some roles legitimately require a level of availability outside ordinary working hours. But a lot of communication can wait.
Managers also need to understand the influence their position carries. A message from a manager at 9pm may say, "No need to respond tonight", but if that manager has historically rewarded people who respond immediately or shown frustration towards those who don't, the words themselves don't necessarily remove the expectation.
This is why the Right to Disconnect shouldn't just be treated as another policy to add to the handbook. It is a management issue and, ultimately, a workplace culture issue.
Set expectations. Be clear about which roles genuinely require after-hours availability. Make sure remuneration arrangements reflect those expectations where appropriate. Train managers to understand the boundaries. And perhaps most importantly, encourage people to stop and think before pressing send.
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Disclaimer: This article is general in nature and provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal or other professional advice.