Greens leader Adam Bandt MP introduced the Fair Work Amendment (Right to Disconnect) Bill 2023 in March last year in a bid to provide workers with the freedom to switch off once they clock off from work.

Following this, it was revealed that 82 per cent of Australian workers were feeling pressured to work additional hours – with legal recruiters at the time confirming that “lawyers’ hours have always been long”. This came after 83 per cent of Lawyers Weekly’s audience admitted that they were “very likely” or “somewhat likely” to work while on leave.

The Right to Disconnect Bill will, in practical terms, protect employees from unreasonable contact from their employers, Jewell Hancock Lawyers principal Andrew Jewell told Lawyers Weekly.

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“Last year, the Senate select committee on work and care drew attention to ‘availability creep’ where Australian employees are increasingly expected to complete work outside of work hours, leading to significant unpaid overtime. This issue would be particularly prevalent in the legal industry given the demands of the work (including client demands) and the fact that most lawyers are not protected by a modern award or enterprise agreement, which results, anecdotally, in frequent out-of-hours contact.

“Under the changes, employees who refuse to monitor or respond to out-of-hours calls and emails from their employer will have legal protections against adverse action, including disciplinary action or dismissal,” he said.

“Employees who are persistently contacted by their employer or manager after hours will be able to apply to the Fair Work Commission (FWC) for a ‘stop order’, similar to the existing stop bullying and stop sexual harassment jurisdictions. It would then be up to the FWC to consider whether the circumstances in which the contact occurred are unreasonable, how often the employee was contacted, the nature of their role or responsibilities and the employee’s personal circumstances before making an order. These changes would be in addition to existing protections employees have against working unreasonable hours.”

The bill, if passed in its current form, will also play out differently for different contracts and different employees, according to K&L Gates partner Michaela Moloney.

“Once the provisions are enacted, employees can refuse to monitor, read or respond to contact, or attempted contact, from an employer, or a third party contacting them about work, outside of their working hours unless the refusal is unreasonable,” she said.

“In practice, much will depend on whether or not a refusal by an employee to respond to contact is reasonable. When considering whether or not a refusal is reasonable, it will be necessary to consider the reason for the contact or attempted contact; how the contact is made and the level of disruption it causes; the extent to which the employee is compensated to remain available (such as an on-call allowance) or to work reasonable additional hours outside their ordinary hours of work; the nature of the employee’s role and level of responsibility; the employee’s personal circumstances; and if the contact or attempted contact is required under law.

“Ultimately, the employer will bear the onus of establishing that the employee’s conduct is unreasonable. Disputes about the right to disconnect can, after an attempt to resolve such disputes within the workplace, be taken to the FWC by either the employer, the employee or an industrial association.”

As reported by HR Leader recently, Greens Senator Barbara Pocock also confirmed that the law will give employees some recourse against employers who demonstrate a persistent disregard for work hours. Employees are encouraged to take the issue up with their employers before going to the FWC.

Swaab partner Michael Byrnes said the right to disconnect consists of two separate rights: the right of an employee to refuse to respond to contact from their workplace outside of working hours and the same refusal for contact or attempted contact from a third party or external stakeholder relating to work.

“This second right could create a significant management issue for law firms, as the third party could be a client contacting an employed solicitor. While the vast majority of clients respect boundaries, there are some who contact lawyers out of hours on matters that are not objectively urgent with the expectation of a prompt response. The client service ethos of many firms has been to put the demands of the client above that of the personal time of the lawyer and to require the lawyer to provide a response.

“The notion of such contact being met with no response or, even worse, a blunt refusal, would be anathema to law firm management. The assessment as to whether the contact from the client is reasonable will initially be made by the employed solicitor who has been contacted – if the refusal (whether ultimately determined to be reasonable or unreasonable) is not communicated diplomatically to the client, then this could damage client relationships. Law firm management needs to grapple with balancing the demands of clients with this new workplace right of its employed solicitors,” Mr Byrnes explained.

“To manage this issue, partners of firms may increasingly seek that clients ensure they are included in any communication to employed solicitors, so that if that solicitor is engaging in a refusal to monitor or respond to what they consider to be unreasonable contact, the partner can step in and manage the situation. Effective communication and protocols for such communication between partners, employed solicitors and clients will be key."

In terms of how this could practically be assessed by the Fair Work Commission or employer, the nature of the employee’s role and level of responsibility need to be considered, added Mr Byrnes.

“For employers of legal staff, this is likely to be an important factor in arguing a refusal to respond to a client or stakeholder outside working hours is unreasonable. While it is likely the Fair Work Commission will readily accept the proposition some contact outside working hours for lawyers is not only reasonable but essential given the nature of their role and responsibility, this will not extend to all contact, even where that contact comes from clients seeking a response,” he said.

“A threshold issue for lawyers might be to determine what their ‘working hours’ actually are. The right to disconnect only applies to contact outside of ‘working hours’. For law firms, the notion of standard office hours is something of an anachronism. The expectation of service and the hours lawyers are expected to work and deal with clients extend beyond these hours. This might be a live issue in any disputes ultimately brought before the Fair Work Commission."

This also will likely mean that in circumstances where an employee is paid above minimum wage or paid an amount to work “reasonable additional hours in excess of their ordinary hours”, contact from an employer will not be considered unreasonable, added Ms Moloney.

“Where an employee is simply paid at minimum wage or the award rate for hours worked, unless exceptional cases apply, out-of-hours contact is likely to be considered unreasonable, and the employee will have the right to refuse to respond to their employer.

“In law firms, this is likely to translate into the right to disconnect applying to administrative staff and more junior personnel where their salaries do not incorporate significant overtime or additional hours. While this change has been touted as a widespread right to disconnect for all employees, in practice, the right to disconnect only exists where the request for contact from an employer is unreasonable,” she explained.

“However, post-pandemic, as the concept of working hours has become more fluid, the enshrining of a right to disconnect in legislation is a timely reminder to employers and employees alike to be mindful of an employee’s right to have time away from work. Even where contact from an employer will not be considered unreasonable, employers should remain mindful of their obligations to provide a safe and healthy working environment for all employees.”