Dutton confirms rollback of Right to Disconnect, but does it matter?

The opposition has confirmed its plans to repeal two key industrial relations reforms that were implemented by the Albanese government, if it wins the looming federal election.

“Unashamedly pro-small business” was the rhetoric that shadow employment and workplace relations minister Michaelia Cash used to defend the Coalition’s plans to repeal two big industrial relations reforms.

Speaking to Sky News, Cash confirmed that the Coalition would repeal Labor’s changes made – as part of the Closing Loopholes legislation – to the definition of casual workers and right to disconnect laws.

As previously reported on HR Leader, the Right to Disconnect (RTD) means that employees of non-small businesses (a business employing 15 or more employees) now have the right to refuse to monitor, read, or respond to contact (or attempted contact) outside of their working hours unless that refusal is unreasonable.

The casual worker reforms included changes that allowed for those casual employees who had worked for 12 months with regular patterns of hours to be offered the option to convert to full-time or part-time (permanent) employment. Of course, certain eligibility requirements need to be met for this to occur.

Cash argued that these reforms were causing harm to Australian SMBs: “They have sent a chilling effect, in particular across small businesses, and we have said, yes, we will seek to repeal them.”

“I mean, if Mr Albanese does not understand the cost, the complexity, and the confusion that our small businesses are under – not just because of the changes to industrial relation laws, but just the weight of the regulatory burden. Well, then, shame on Mr Albanese.”

Cash later announced that her approach to industrial relations policies would be “unashamedly pro-small business”.

“They are the backbone of the Australian economy. One in two people are employed in them. And if you’re not one of those people, I can guarantee you probably go into a small business on a daily basis,” Cash said.

Before the Right to Disconnect came into place, many critics expressed a similar sentiment to Cash’s – claiming the reforms would only add to the rampant overregulation of Australian businesses.

“The Right to Disconnect law, for instance, adds to the compliance burdens, despite its intentions, contributing to a landscape that seems increasingly hostile to business owners,” said Employment Hero chief executive Ben Thompson.

“Far from fostering an environment conducive to growth and innovation, the introduction of the ‘Closing Loopholes’ legislation appears to tighten the noose around the necks of SME owners, introducing penalties so severe they could easily dismantle the dreams of many Australian entrepreneurs.”

“With fines reaching millions of dollars, even minor breaches could spell disaster for businesses, particularly family-run establishments that might misinterpret the law.”

Support of the reforms

Minister for Employment and Workplace Relations Murray Watt, however, disagrees with this notion, claiming the reforms are “world-leading” – pushing back on Dutton’s plans to repeal the reforms.

“The Albanese government’s Closing Loopholes reforms brought in world-leading protections for workers,” Minister Watt said.

“Labor is proud of the changes we have made to improve conditions and lift wages, and everywhere I go, I meet workers who are benefiting. We know that many Australians are doing it tough at the moment, but these changes are helping to deliver pay rises and more secure work right across the country.

“Peter Dutton wants everyday Australians to work longer and earn less and is hellbent on stripping workers’ rights to make it happen. Peter Dutton needs to come clean on what other workplace laws will be on the chopping block.”

The Australian Council of Trade Unions (ACTU) has alleged that the culling of the Right to Disconnect laws risks “adding more than 100 minutes of unpaid overtime every week for the average Australian worker”.

“An overlooked impact of the right to disconnect has been the benefit to people’s cost of living. Australians getting paid for their actual hours of work, including overtime, helps people get ahead in life,” said ACTU secretary Sally McManus.

“You don’t help people with the cost of living by cutting their overtime pay and making them work for free. It is astounding that the Coalition is so incredibly hostile to Australian workers having the right to disconnect. Politicians might like being switched onto their jobs all the time, but most people actually have lives outside of work.”

Media hype or substantive reforms?

Sean Melbourne, director of Source Legal and Workplace, believes that although the discourse surrounding the RTD was immense during the build-up towards its implementation – the real-life effects of the legislation have been far from polarising.

“While there was a lot of media attention on the right to disconnect when it was introduced, because of the way the [RTD] was framed, its effect on workplaces has been fairly limited,” Melbourne said.

“The key reason for this is that the legislation doesn’t place any obligations on employers not to contact employees outside of working hours. It just gives employees a right to refuse to monitor, read, or respond to contact if it’s not unreasonable to do so. So employers can contact employees all they like and won’t be in breach of the legislation.”

“The only time they would be prevented from doing this would be if the employee makes an application to the Fair Work Commission and an order is made preventing contact. That is not something that is going to happen often.”

In 2024, Melbourne labelled the introduction of the RTD as one of the “biggest non-events of the year”, debating that the primary issue that underpins the reform can be handled through simple policies, guidelines, and conversations between employees and employers – instead of legal means.

“The likelihood of an employee’s disconnection becoming an issue in a workplace is pretty remote. It often won’t be a big issue if an employee is not contactable and, where it is an issue, most workplaces have policies or guidelines in place to address this. These types of issues are often just sorted out through discussions and agreeing expectations, rather than recourse to legal means,” he said.

“We have seen some employers put the Right to Disconnect policies in place, as well as include terms in contracts to make it clear that the employee’s salary remunerates them for being contactable outside of working hours (part of the reasonableness test). But that’s about the extent of it. It hasn’t otherwise had that big of an impact on workplaces.”

“When the Right to Disconnect laws were introduced last August, I commented that I thought it was one of the biggest non-events of the year. Most employment lawyers agreed with me, and I think that’s pretty much how it turned out. If the Coalition rescinds the Right to Disconnect laws, there would probably be a brief media frenzy again, but after that, I think few people would notice the difference.”