The right to disconnect: what does this mean for my workplace?

Background

Earlier this year, the second tranche of the Federal Government’s significant workplace reforms passed into law, bringing major changes for employers. The reforms, in combination with those passed in late 2023, introduce landmark change to Australia’s employment laws for employees, employers, independent contractors, gig workers and principals of most Australian workplaces.

One key and highly controversial component of the reforms is the introduction of the workplace right to disconnect. Following its introduction on 26 August 2024 for non-small businesses and 26 August 2025 for small businesses (being those with fewer than 15 employees), the right to disconnect is included as a term in all modern awards and explicitly protected under the Fair Work Act 2009 (Cth) (FW Act).

This article provides an overview of the right to disconnect and insight as to how employers can ensure compliance.

What is the right to disconnect?

The right to disconnect is a new workplace right that allows employees to ‘refuse to monitor, read or respond to communications, or attempted communications, from their employer, third parties, or other employees, unless their refusal is unreasonable’. This right applies to any form of communication, such as emails, texts, calls or work-related messaging platforms. The right to disconnect is entrenched in both section 333M of the FW Act and all modern awards.

What is an ‘unreasonable’ refusal?

The right to disconnect will not apply when the employee’s refusal is ‘unreasonable’.

Although no exhaustive list of considerations is outlined in the new provisions, the below factors must be considered:

• the reason for the contact
• how the contact is made
• how disruptive the contact is to the employee
• whether the employee is compensated or paid extra to remain available to work during the required period or for working additional hours outside of their ordinary hours of work
• the nature of the employee’s role and their level of responsibility
• the employee’s personal circumstances, including family and caring responsibilities.

Notably, employees who are paid an on-call allowance to remain available for work will not be able to rely on the right to disconnect, as it will be reasonable to contact an employee if they are paid to be on call.

What does this practically mean for employers and employees?

The right to disconnect will not change the common practice in some workplaces of emailing employees outside of working hours on the shared understanding that a response is not required until the employee recommences their usual working hours. It will also not prevent employers from contacting employees where urgent issues arise that require a timely response, even outside of working hours.

For highly-paid employees, with high levels of responsibility, an expectation that they continue to perform their duties outside of ordinary hours if necessary, will also likely remain reasonable.

Employers who do contact their employees unnecessarily outside of ordinary working hours, expecting a response, when it is not business critical, may find that their employees reasonably push back, citing their new right to disconnect.

Employers may also need to intervene if their customers or other third parties continue to unreasonably contact employees outside of working hours expecting an immediate response, in circumstances where the employee has expressed concern about the contact.

In both of these situations, employers need to be careful in their response, as it is unclear how these new laws will be interpreted when a dispute arises.

How are disputes about the right to disconnect resolved?

As the right to disconnect is a protected workplace right under Part 3-1 of the FW Act, an employer must not take adverse action against an employee for reasonably refusing contact outside of work hours.

Disputes about an employee’s right to disconnect must be attempted to be resolved at a workplace level in the first instance. If a dispute cannot be resolved, either party may apply to the Fair Work Commission, who may make orders including:

• preventing an employee from unreasonably refusing contact with their employer
• preventing an employer from contacting an employee outside of work hours
• preventing an employer from taking disciplinary action against an employee for refusing contact outside of working hours.

Steps employers can take now

To assist the parties understand what is reasonably expected of them in light of the new right to disconnect laws, employers should consider:

• reviewing current employment contracts within the workplace to incorporate any expectations or requirements of after-hours availability
• reviewing employee remuneration to ensure adequate compensation is paid if they are expected to remain available after working hours
• consulting with employees to determine which types of after-hours contact are necessary and unnecessary
• establishing a right to disconnect policy and communicating the requirements within the workplace
• alerting managers and leaders to the change, including providing appropriate training on the right to disconnect protection
• the use of technology to implement the right to disconnect, including updating email signatures and voicemail to identify working hours and likely response times or setting up email systems that identify truly urgent issues.

For assistance in identifying and implementing these changes in your workplace, please contact a member of our workplace relations and safety team.