Bandt’s bill eventually passed both houses of Parliament, and – from 26 August 2024 – employees of big businesses will have the right to refuse contact outside their working hours unless that refusal is unreasonable, meaning an employee can refuse to monitor, read, or respond to contact from an employer or a third party. The right, Fair Work advises, also covers attempted contact outside of an employee’s working hours.

Opposition Leader Peter Dutton has said that, if elected, a coalition government would move to repeal the new laws.

In the meantime, however, senior law lecturer Dr Gabrielle Golding from the University of Adelaide said on a recent episode of The Lawyers Weekly Show, until such time as FWC sets precedents from test cases, and while there are still “teething issues” in implementation, employers may need to err on the side of caution when it comes to the implementation of the new Right to Disconnect.

As with any legislative or regulatory change, in-house legal teams can and should be supporting other business functions in adhering to said changes. The new Right to Disconnect is no different.

However, as senior lawyers told Lawyers Weekly, for businesses that already have the right processes and policies in place, this shouldn’t present hurdles.

Canon Oceania chief legal counsel David Field, who also serves as the business’s head of human resources, said that “if you’re running a sensible workplace, very little should change”.

“Given the confusion around the concept [of the Right to Disconnect], it’s going to be important to communicate with your employees and managers about what the new right means, and what it doesn’t mean – otherwise, there’s a risk of some unhelpful behaviours based on a misunderstanding of the law,” Field said.

VIEW ALL

This said, Field noted, “it will be inherent to some roles (e.g. due to the nature of the role or seniority) that some degree of contact outside normal working hours should be expected. There will also be some situations where it’s entirely reasonable to expect any employee to engage after hours – for example, emergencies or situations related to the employer’s duty of care.”

As a result, he advised, “the best policy is that if a communication can wait until the next day, it should”.

Modaxo Traffic Management group legal counsel Emilie Franklin supported this, noting that businesses across the country that already have relevant policies and procedures in place are the ones “that will be better equipped and will have culture already gearing towards these new changes in legislation”.

Other businesses, however, “will need a total cultural revamp” in relation to the Right to Disconnect legislation, Franklin added.

“I know that many legal teams have been working with HR departments to align policies and procedures to comply with the Right to Disconnect legislation, but it will ultimately come down to implementation and practice, changing a culture to be one that is more respectful and understanding of people’s Right to Disconnect,” she said.