Australia’s new ‘right to disconnect’ law includes jail time — for now

A new Australian law includes a “right to disconnect” that would give employees the right to seek an order from the government barring their employers from requiring them to respond to emails or phone calls outside of working hours. For the moment, it also provides for penalties that could include jail time.

The Fair Work Legislation Amendment (also known as the Closing Loopholes No. 2 Bill), secured passage in both houses of Australia’s legislature on Monday. It leaves  open the potential for criminal penalties after legislative back-and-forth between the Liberal and Labor parties. The latter, who run the government, have vowed to change the legislation, which does not take effect for six months.

Nevertheless, civil penalties are likely to still apply, and could present an issue for IT departments tasked with handling email in compliance with local laws.

The bill provides for an Australian employee’s right to “refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of their working hours,” subject to “reasonable” exceptions. The idea is to prevent employers from demanding what is essentially extra work from their employees without paying them commensurately.

The exceptions focus on identifying whether an employee’s refusal to be contacted is reasonable; the bill identifies factors like the reason for the contact; how it is made and how disruptive it is; the extent to which the employee is compensated for their time, and similar considerations, according to an analysis of the bill from Australian law firm MinterEllison.

“There are an increasing number of right to disconnect clauses in enterprise agreements — they will continue to apply if they are more favorable than this new right in the Fair Work Act,” the law firm’s analysis said. “All modern awards will also be required to include a right to disconnect clause.”

Australia’s passage of the law is not unique — other countries, such as France, have implemented laws requiring employers to negotiate a disconnection rule that outlines when and how they’re allowed to contact employees outside of normal working hours. Variations on the rule are also on the books in Canada, Germany, Italy and the Philippines.

Industry groups, unsurprisingly, have generally met such bills with hostility, warning of lost productivity, fewer jobs, and substantially higher costs for businesses.