The Right to Disconnect in Australia: Creating Space for a New Term Implied by Law

Abstract

A French labour law commenced in 2017 attempting to preserve a ‘right to disconnect’, requiring companies with 50 employees or more to negotiate policies about work-related communications with employees outside work. This legislation points to a universal problem, equally affecting Australian employees. The expectation to stay connected out-of-hours is making employees miserable, leading to burnout, poor performance, and high turnover. While a right to disconnect has not yet been widely recognised in Australia, this article explores the several forms it could take. Some employers have begun implementing equivalent changes to their workplace policies and enterprise agreements. The right could be formulated as an express contractual term. Modern awards and the National Employment Standards could be varied to include it. However, these options depend on direct intervention at the workplace level, or by Parliament. Instead, the common law could be instrumental in recognising it as a term implied by law.