The UK’s Turn to Switch Off? Lessons from Australia’s Right to Disconnect – by Gabrielle Golding and Philippa Collins

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1. Introduction

One commitment made in the Labour Party’s ‘Plan to Make Work Pay’ was introducing a ‘right to switch off’ from work. Whilst the Coronavirus pandemic demonstrated that a wide range of flexible and remote working patterns are possible, it also highlighted how an employer’s demands and an individual’s responsibilities associated with work can extend well beyond working time and working spaces. These blurred boundaries led to analyses, including in the UK Labour Law Blog itself, of the problems of the ‘home-workplace’. As we leave the pandemic behind, one lasting lesson is the need to consider the possibility of a new right for working people—a right to disconnect from work or to ‘switch off’.

Other jurisdictions have acted on this matter, some even before the pandemic. Across two pieces, we investigate the right to disconnect from two perspectives. In the present piece, we chart the Australian experience of introducing a right to disconnect. The form, rationale and design of Australia’s right is explored here, with a view to generating key lessons for UK law and policy makers as they come to consider the question of the right’s inclusion in UK labour law. In a second blog, we investigate how to situate a right to disconnect in the domestic employment law regime, in the light of the risks and rationales presented below. We suggest that framing the right as an aspect of the working time regime may be a profitable avenue of exploration with distinct advantages to be gained for employers and employees alike.

2. The basics of Australia’s right to disconnect

In February 2024, Australia’s right to disconnect was introduced under Part 2-9, Division 6 of the Fair Work Act 2009 (Cth). That Act is Australia’s primary piece of workplace relations legislation. It is responsible for setting the minimum terms and conditions for Australia’s ‘national system employees’, which includes most working Australians, save for those employed in state and local government. The right commenced operation on 26 August 2024 for larger businesses and will do so a year later for those working in small businesses (being those with fewer than 15 employees at a particular time, based on a headcount).

It may come as a surprise that the right was enacted relatively rapidly in under 12 months. The earliest legal examination of the right’s potential in that jurisdiction appears to have occurred in Dr Gabrielle Golding’s early 2023 UNSW Law Journal article, ‘A Right to Disconnect in Australia: Creating Space for a New Term Implied by Law’. That work highlighted both the right’s necessity, as well as the legal options for its implementation. Based on that research, the Australian Greens moved to introduce the Fair Work Amendment (Right to Disconnect) Bill 2023 (Cth) to the Australian Parliament in May of the same year. That Bill framed a potential right to disconnect in relatively broad terms, but eventually lapsed. However, it was by no means the end for Australia’s right to disconnect; the Bill’s lapse was, in fact, deliberate.

Behind the scenes, the Australian Greens had successfully negotiated with the Australian Labor Party for the inclusion of a legislative right to disconnect for Australian employees as part of Australian Labor’s latest tranche of amendments to the Fair Work Act 2009 (Cth) contained within the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth). That amending Act was passed on 12 February 2024. As with the earlier Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth), it included a range of other notable legislative changes to the Fair Work Act 2009 (Cth). For example, the 2024 Act created a category of ‘employee-like’ worker (i.e., those who perform digital platform work in the gig economy) over which the Fair Work Commission would have jurisdiction (among other things).

The right’s introduction in Australia was controversial in certain circles, particularly amongst employer groups such as the Australia Chamber of Commerce and Industry. Nevertheless, the intent, content, and purpose of Australian Labor’s proposed right, supported by the Australian Greens, withstood that opposition. It would be remiss not to mention at this point that the newfound right remains under threat, should there be a future change to Australia’s federal government. The more conservative Australian Liberal Party has made several open threats to abolish it, should they regain power following the next federal election, due to be called on or before 27 September 2025).

Even so, the legislative right now firmly operates pursuant to section 333M(1) of the Fair Work Act 2009 (Cth) as one under which ‘[a]n employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable’. That same right also applies in respect of contact, or attempted contact, from a third party (s 333M(2)), which would most obviously include a client or customer of an employer, or, for academics, students at the university in which they work.

Should employees be covered by an enterprise agreement containing a more favourable right to disconnect, then that right will prevail (s 333M(6)). All modern awards, which are statutory-based instruments that set minimum standards for many Australian employees based on their industry or occupation, must also contain a right to disconnect term (s 333M(6)). Australia’s national workplace relations tribunal, the Fair Work Commission, has now amended all 122 modern awards to insert a model ‘right to disconnect term’, with a review of those terms scheduled to occur within the next 12 months.

The result of that impending review may be that right to disconnect terms in certain modern awards become more industry or occupation specific, depending on the nature and coverage of the particular award. It is also feasible that an individual employee could benefit from a more favourable right to disconnect contained within their contract of employment or applicable workplace policy document (which may or may not be contractual). Contractual terms cannot undercut the minimum standards provided for in an applicable enterprise agreement or modern award. An employee will either be covered by a modern award or enterprise agreement, but not both.

For employees covered by the Fair Work Act 2009 (Cth) who earn above the ‘high income threshold’, currently indexed at $175,000 AUD, their employment will not be covered by either a modern award or enterprise agreement. They will still be subject to protection by the National Employment Standards (‘NES’): 11 basic minimum terms and conditions for all national system employees which also underpin all modern awards and enterprise agreements. Separate from the NES, high income earners are afforded the new right to disconnect. The result is that all national system employees are afforded a right to disconnect within the definition of s 333M, regardless of their salary or level of seniority.

A central question within the right’s design is whether the employee’s refusal of contact was ‘unreasonable’. Section 333M(2) provides that the following collection of factors must be taken into account:

(a)   the reason for the contact or attempted contact;

(b)   how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

(c)   the extent to which the employee is compensated:

(1)   to remain available to perform work during the period in which the contact or attempted contact is made; or

(2)   for working additional hours outside of the employee’s ordinary hours of work;

(d)   the nature of the employee’s role and the employee’s level of responsibility;

(e)   the employee’s personal circumstances (including family or caring responsibilities).

Section 333M(5) also stipulates that refusals will necessarily be unreasonable if the associated contact is required by law of the Commonwealth, a state, or territory.

Should a dispute arise with respect to an employee exercising their right to disconnect, a discussion must first occur at the workplace level, with a view to trying to resolve it (s 333N(2)). Should a resolution not occur at that initial stage, then an employee or employer may apply to the Fair Work Commission for a ‘stop order’, such that the unreasonable contact by the employer or unreasonable refusal of contact by the employee must ‘stop’.

The Fair Work Commission must then deal with any application for a stop order in accordance with certain protocol set out under s 333P. Crucially, there is no monetary penalty available at this stage – only the potential for a stop order. The Fair Work Commission may also deal with the dispute in other ways it deems appropriate, such as requiring the parties to engage in conciliation or arbitration (s 333V). It can refuse to deal with an application involving matters concerning defence, national security, or certain covert operations (ss 333S and 333T).

Stop orders made pursuant to s 333P must not be contravened (s 333Q). If they are, then compensation, injunctive relief, or civil penalties against the employee or employer in breach can be sought in a court of competent jurisdiction, rather than in the Fair Work Commission (s 333Q). At present, the maximum potential civil penalties may be up to $18,780 AUD per contravention for an individual; $93,900 AUD per contravention for a company with less than 15 employees; and $469,500 AUD per contravention for a company with 15 or more employees. Importantly, a criminal penalty is no longer possible for the contravention of a stop order, with that possibility promptly removed by virtue of the Fair Work Amendment Act 2024 (Cth), passed within months of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth).[1]

3. Rationales for the right to disconnect

It is well known that technology has enabled constant connectivity and blurring of boundaries between work and home life, allowing intrusion of work-related demands into private time and spaces. Although the blurring of boundaries between work and private life and time was brought into sharp relief by the experience of the pandemic, there are several overlapping justifications that we argue underpin the necessity of a right to disconnect now that the days of lockdown have passed. Here, we point to three rationales.

First, and most pressing, is the health, safety and well-being risks associated with the rise in constant connectivity with work and its demands. Both Australian and UK employees are glued to highly addictive digital devices (most commonly, smartphones), with a constant pull to engage in work-related communications outside one’s normal working hours. Moreover, it is well-documented that constant connection to work is damaging employees’ health and wellbeing. Indeed, constant connection to work can lead to disrupted sleep, overwhelming stress, burnout, challenging interpersonal relationships, and distracted carers. A right to disconnect would encourage healthier workforces, and by extension, lead to greater employee job satisfaction. There are also corresponding benefits for employers in terms of elevated employee productivity and reduced staff turnover, as well as a more positive workplace culture.

Second, the right to disconnect is one aspect of a toolkit that enables an individual to balance their work responsibilities with personal commitments, projects and passions. In turn, the individual’s ability to exercise this form of control according to their own preferences and needs protects the right to respect for one’s private and family life within the context of an employment relationship. As will be well known, this right is protected in numerous international human rights documents, including the UN Universal Declaration of Human Rights, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. The right to disconnect places limits on the ways in which an employer can infringe upon that private time away from work, alongside a range of other rights such as the right to various forms of family leave and to paid annual leave.

Finally, discussions regarding the need for a right to disconnect present an opportunity to raise concerns about the amount of unremunerated work being performed by employees. In 2023, data from the Australia Institute’s Centre for Future Work showed that Australians worked an average of 5.4 hours a week of unpaid overtime. The cumulative result was an estimated $131.2 billion AUD worth of unpaid overtime over the course of that year. Comparable statistics exist in respect of unpaid overtime performed by UK employees. TUC data analysis indicated that, during 2023, UK workers performed an average of 7.2 hours of unpaid hours a week. Whilst electronic connectivity will only be one component of the 26,978,422 hours of unpaid overtime in the UK, it is an important and growing component that has the pernicious health impacts identified above. The right may not guarantee overtime pay for this type of work specifically, but it does enable workers to engage in dialogue about how this form of work can be remunerated fairly.

4. A balancing of interests

In the Australian debate regarding the right to disconnect, responding to the objections and concerns raised by its business community has been crucial in enabling the right’s introduction. Substantially similar objections to the right are likely to appear within the UK discussion and they have already begun to find their way into the public discourse. It is therefore useful to consider how the Australian framework has sought to balance these concerns with the values and interests sought by the right outlined above.

In the lead up to the right’s introduction in Australia, suggestions were made that it would stifle employee productivity and even promote laziness within workforces. However, there exists a strong and compelling argument that placing limits on working time boosts productivity, rather than limits it. Most recently, we can see evidence of this effect in studies concerning the introduction of a four-day work week. In addition, a workforce that can exercise the kind of control over working time mentioned above and does not suffer the ill-effects of constant connectivity and availability creep is likely to be productive on a more sustainable basis. The concern about diminished productivity is perhaps overstated.

Suggestions were also made that a right to disconnect would limit an employee’s ability to ‘manage themselves’. Concerns were expressed that it would diminish the employee’s ability to work flexibly, which could, in turn, prove particularly damaging to female employees, or others in caring roles. This anxiety, we argue, is entirely misplaced. Employees’ flexibility is maintained by the ability to continue to monitor and respond to contact if they choose to do so. For example, if an employee’s established pattern of work is to ‘sign off’ for a few hours between picking up their children from school and putting them to bed, and then resuming work later outside of standard working hours, that flexibility is supported by the sign of the right. Two ‘reasonableness’ factors (including the employee’s personal circumstances, and the level of disruption caused by the contact) also reflect the need to take into account the specific circumstances of the employee when refusing contact.

The notion that such a right would limit an employer’s ability to manage its own business (thereby curtailing its managerial prerogative) was likewise a concern. However, as just mentioned, there are a range of factors that must be considered when determining reasonableness of out-of-hours contact. For example, if the reason for the attempted contact is a problem that is pressing for the business, this would be reflected in the reasonableness assessment. Similarly, the nature of the employee’s role, their level of responsibility and the extent to which they are compensated for remaining available are all included in the listed factors. Whilst one might query whether the inclusion of these factors will reduce the impact of the new right on workplace culture, the reasonableness factors give due weight to the employer’s ability to manage its business.

Some employers argued that the right’s introduction would not suit their unique operations, especially those with multinational operations across various global time zones. Again, however, the right attaches individually to employees, depending on their unique circumstances, location, and working hours. It is axiomatic that employees must be paid for the time during which they perform work, rather than bowing to an expectation of being contactable out-of-hours without remuneration to accommodate those in different time zones.

5. Conclusions: signalling a shift in workplace culture

Overall, what the above discussion demonstrates is that striking a suitable balance between employee and employer interests has been essential to seeing the right to disconnect come to fruition in Australia. Its introduction has opened the gateway to conversations about reasonable and unreasonable out-of-hours contact, and associated boundaries between one’s work and private life. Even in the lead up to its introduction, these conversations gathered fruitful momentum in workplaces across the country, as well as in the media. Enduring questions of what constitutes reasonable versus unreasonable out-of-hours contact will be answered in the fullness of time once the first applications for stop orders are brought. At that point, there will be a clearer indication of how the right balances both employer and employee interests. For now, however, Australian employers have been and will continue to be prompted to consider how and when work is performed by those working in their organisations, and whether employees are being duly compensated for their working time.

For the UK, there is a potential for a similar cultural and societal shift around overwork, availability creep, mental health and wellbeing, and the value placed on work and private time. The discussion and ultimately introduction of a right to disconnect would be an important part of this shift. The right to disconnect or switch off would offer recognition of this issue and an additional right for working people, as well as a venue to balance that right against the interests of the business. It is therefore timely to not only consider what the UK can learn from recent developments in Australia as we have endeavoured to do throughout this blog, but also the way in which such a right might be situated within the UK’s labour law system. We therefore invite readers to our corresponding blog, which probes that potential.

[1] There are two further causes of action available to an Australian employee, should their right to disconnect be infringed upon. First, an employee’s right to disconnect constitutes a ‘workplace right’ for the purpose of Part 3-1 of the Fair Work Act 2009 (Cth), which prohibits unlawful adverse action. An employee therefore retains an additional right to bring an adverse action claim based on having, using, not using, proposing to use, or proposing not to use that workplace right. Secondly, employees retain the right to bring a concurrent work health and safety claim concerning the same conduct under the Work Health and Safety Act 2011 (Cth) or its state- and territory-based equivalents.

About the authors:

Suggested citation: Dr Gabrielle Golding and Dr Philippa Collins, ‘The UK’s Turn to Switch Off? Lessons from Australia’s Right to Disconnect’ UK Labour Law Blog, 4 October 2024, available at https://uklabourlawblog.com)