Australia’s Senate on Thursday, February 8, 2024, passed a bill that would prevent an employer from contacting employees outside of work hours. The bill gives the employee the right to refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours without fear of being penalized, unless the employee’s refusal is unreasonable.

This new right has been included as an amendment to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 aimed at reforming employment and workplace relations.

“Someone who isn't being paid 24 hours a day shouldn't be penalized if they're not online and available 24 hours a day,” Australian Prime Minister Anthony Albanese told reporters earlier this week.

Either the employer or the employee may apply to the Fair Work Commission (FWC) for an order if they have a dispute but are unable to resolve it after discussions. The FWC may order the employer to stop unreasonable out-of-hours contact.

Employers could face punitive consequences for breaching this law. While the bill has not yet passed, it is proposed that employees will be able to raise a complaint with their employer and if the issue is not resolved at the workplace level, employees can apply to the Fair Work Commission for an order for the employer to stop unreasonable out-of-hours contact. Potential penalties of up to $18,000 may also be imposed on employers.

If this passes, employers may need to consider taking next steps to comply with this law, including:

• Updating or amending employee handbook and employer policies
• Modifying or improving management approach and employer processes for employee’s work-life balance
• Training managers and employees on the legal requirements and the “do’s and don’ts”
• Developing mechanisms at the organization for dispute resolution for disputes in this area

While this bill has received mixed feedback in Australia, similar laws recognizing an employee’s right to disconnect are already in place in other countries. For example, in 2016-2017, France introduced the right of workers to disconnect from employers during their time off. The French law does not dictate how the right to disconnect should be implemented. Rather, depending on the size of the company and the structure of the employee’s representation, the employer might be under an obligation to initiate periodic negotiations on the right to disconnect, or adopt a policy after having obtained the Work Council’s opinion, or guarantee the effectiveness of this right to its employees. The law does not impose sanctions on an employer for contacting an employee outside of working hours but does prevent the employer from disciplining an employee who does not respond to the out-of-hours contact.

Spain also has legislation that provides the employee the right to switch off electronic devices used for work purposes outside of the working day.

The bill now awaits the House of Representatives for final approval but is expected to pass soon. We will be closely monitoring developments.