Australia’s newest workplace right wants to bring back work-life balance. But how? Photo: File.
It’s 7 pm. You’re cooking dinner and ABBA drops out – an incoming call. It’s your boss.
To hell with that.
You beam up Netflix. Your phone buzzes again. Squid Game it is.
Come Monday, you receive a calendar invitation to a meeting titled ‘Employee Expectations’. It turns out a client in a perilous ongoing deal reached out … and your expertise was needed.
Who has rights in this situation?
Last year, Australia followed several European and South American countries and minted a workplace ‘right to disconnect’. This didn’t, as imagined, make it illegal for a boss or client to contact you outside of work hours but it did mean that where not ‘unreasonable’, you may have a right to ‘refuse to monitor, read or respond’.
From 26 August 2025, it will also apply to small businesses (those with fewer than 15 employees).
The big question is what’s reasonable?
Amy Sydney, an expert in workplace law at leading Canberra firm MV Law, says certain factors are likely to be considered.
They include the reason for the contact, how contact is made, the level of disruption it causes, the extent to which you are paid to remain available or work additional hours, how much responsibility and what role you have, and your personal circumstances.
“It’s likely to be considered more reasonable to expect that a person should be able to be contacted outside of work hours if they’re an executive on a high income … as opposed to the secretary who sits at the desk from nine to five and answers the phone calls,” Amy says.
Amy Sydney says determining when it’s reasonable to ‘disconnect’ is case by case – but there are important principles. Photo: Michelle Kroll.
She gives the example of lawyers, for whom it is sometimes “negligent to ignore our emails”.
“If you have a client who’s selling a house and the settlement period happens to be over Christmas, and you say ‘oh sorry I’m actually not watching my emails’ and penalty interest accrues, that’s probably going to be a breach of professional rules.
“But if I am on leave and a colleague is managing my cases, it may not be unreasonable.”
Thus, it’s a case-by-case basis.
Amy says there is some common ground with those ‘reasonable additional hours’ clauses you see in contracts. The employer has generally offered above and beyond what’s expected of them in the award or industry standard, so they expect flexibility from you in return.
No `right to disconnect’ cases have been reported yet, but “you can expect the Fair Work Commission and the courts will use those same sorts of principles of reasonableness that they’ve worked out in those areas”.
Amy says some industries might find the new right a particular challenge.
“It may be particularly uncertain for those with unpredictable working hours, such as the hospitality industry, or for example, industries like hairdressing where businesses might change working hours from season to season.”
Or in professions such as law or medicine.
“There’s an expectation that highly paid professionals will just work whatever hours they need to get the job done. It may be that some of those professionals will demand some work-life balance and draw some boundaries … and the response to that will vary from employer to employer.”
She says the new right is already creating cultural change in workplaces.
“Employers are thinking twice about contact, which is probably the main aim of the legislation in the first place. I’ve seen employers start to implement mechanisms to show they are supporting their employees in exercising this right – for example, giving template automatic email responses.”
So what should you know?
Amy says the first thing to realise is that it all starts with a conversation.
“Similar to stop-orders already in place for bullying in the workplace, if Fair Work grants a stop-order, it might be an order that stops the employer from trying to contact the employee outside of work hours. Alternatively, if the application to Fair Work is made by the employer, it might stop the employee from unreasonably refusing the contact.”
Either way, it’s the last resort.
“The applicant has to have exhausted all internal mechanisms before making an application to Fair Work. A conversation with the employee / employer is the first thing. And does the employer have policies about this?”
Employees curious about their rights can reach out to Fair Work for information or speak to a lawyer for specific advice. Employers should ensure their contracts and policies are up to date and may consider encouraging employees to use mechanisms such as automatic replies.
“That may go a long way in a Fair Work matter to show that the employer is being very reasonable.”
Importantly, it’s not business as usual.
“There’s certainly pitfalls that an employer can fall into if they don’t seek that proper assistance from the outset in creating these documents.”
For more information, contact MV Law.
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