The employee’s right to disconnect in Canada and Australia

Fabian Flintoff

Flintoff Law, Australia

fabianflintoff@hotmail.com

Introduction

Employees and unions have increasingly raised the issue of ‘availability creep’ at workplaces over the last decade. The right of an employee to disconnect from work has emerged as a significant issue in a number of jurisdictions in recent years. Such laws engage positively with the right to a reasonable limitation of working hours in Article 7 of the International Covenant on Economic, Social and Cultural Rights. In this article, I will review recent changes in jurisdictions within Canada and Australia.

Canada

In Canada, the province of Ontario led the way with right to disconnect legislation ('RTD legislation'). The legislation essentially requires certain employers to develop a written policy on the right to disconnect.

The right is in its infancy. Some experts have criticised what they as shortcomings of the law. For example, David Doorey, a Professor at York University, has observed that government descriptions of the right to disconnect are misleading because the law does not create any new enforceable rights for employees.^[1]

Ontario is currently the only Canadian province with a legislated right to disconnect. However, there are moves towards change for federal and dederally regulated employees. An advisory committee issued a report on the right to disconnect to the federal government in February 2022.^[2] And in the recent 2024 Federal Budget, Canada foreshadowed the introduction of a right to disconnect for all of the federal public sector and federally regulated workers. Early indications suggest that the federal legislation may be similar although not identical to the approach taken in Ontario. It may take some time for the proposed changes to the Canada Labour Code to be finalised.

Australia

In Australia, RTD legislation was introduced by the Greens in 2023, but was not passed by Parliament. Then later, the Labour government included right to disconnect changes as part of the Closing Loopholes amendments in 2024.^[3] Although strongly opposed by the conservative opposition parties, it was passed in 2024. For many employers, the legislation commenced on 26 August 2024 (provisions will commence later for small business).

The right to disconnect, outlined in the Fair Work Act 2009 (Cth) grants employees an enforceable workplace right to refuse to monitor, read or respond to contact (or attempted contact) from an employer or a third party outside of their ordinary working hours, unless such refusal is unreasonable.

Factors which may determine whether an employee’s refusal of the contact is unreasonable include:

• the reason for the contact;
• how the contact is made;
• the level of disruption caused by the contact;
• compensation received by the employee for remaining available to perform work or for working any additional hours outside of their ordinary hours;
• the nature of the employee’s role and level of responsibility; or
• the employee’s personal circumstances (including family or caring responsibilities).

If there is a dispute about the application of these provisions, the employee and employer must attempt to first resolve it at a workplace level. If they cannot resolve the matter, the employee or employer may apply to the Fair Work Commission (FWC) to deal with the dispute and make orders.

The FWC may make the following orders:

• an employee to stop refusing contact with the employer (ie, they need to respond outside of their ordinary hours);
• an employer not to take disciplinary action against an employee for refusing contact from the employer; or
• the employer cease contact with the employee outside of their ordinary hours.

The FWC will have its usual powers to deal with a dispute, including by mediation, conciliation or by making a recommendation or expressing an opinion. The new provisions are also ‘workplace rights’ under Part 3-1 of the Fair Work Act 2009 (Cth), meaning that an employer cannot take adverse action against an employee for exercising their right to disconnect.

It is still unclear how the right to disconnect interacts with:

• what constitutes ‘reasonable additional hours’ of work under the National Employment Standards;
• the obligations on employers to ensure compliance with work health and safety obligations; and
• how time spent engaging with such contact, and/or refusing to engage will interact with established case law regarding the right to request an employee carry out overtime.

What should employers do to prepare for the changes to Australian legislation?

Employers operating in Australia will no doubt encounter challenges in complying with the new legislation. Some steps they could take this year include:

• considering which roles are currently being contacted outside of working hours;
• developing guidance materials for managers and staff;
• determining whether payroll systems need to be reviewed;
• communicating with employees about the right to disconnect; and
• updating employment contracts and any applicable policies, to confirm that some out of hours contact is to be expected given the employee’s role/seniority/remuneration.

Conclusions

The question remains whether jurisdictions who legislate a right to disconnect will influence the culture of modern work more than those jurisdictions that do not. The answer appears uncertain, especially when one considers the strong cultural impact of multinational companies in an increasingly globalised world.

Conceivably, the right to disconnect could be more effective in circumstances where its terms have been bargained between a group of employers and employees and are appropriate to the industry in question. If so, the Canadian approaches to RTD may provide more effective tools to change work culture in the longer term, as opposed to the more generalised and proscriptive model about to commence in Australia.