Written by Adam Doughman and Riana Ullattikulam from RedeMont
On 26 August 2024, the “Right to Disconnect” came into effect for employers (other than for small businesses with less than 15 employees) and will apply to all Australian employers as of 26 August 2025. Whilst it’s somewhat of a hot topic, the right to disconnect essentially codifies existing protections under the Fair Work Act 2009 (Cth) (FW Act) which already prohibits adverse action against employees who question or complain about their employment conditions. However, the right to disconnect clarifies this protection and highlights the importance of workplace flexibility. It emphasises the need for employers to respect employees' time off and avoid pressuring them to work outside of normal hours.
This is particularly relevant in today's changing work environment where many employees can work from home. The right to disconnect aims to ensure that employees can truly disengage and enjoy their time off without feeling obligated to respond to work demands.
Whilst receiving considerable media attention, the right to disconnect should not cause undue angst for employers who understand that appropriate time away from work is necessary for greater productivity when attending work.
What is the ‘Right to Disconnect’
Section 333M of the FW Act provides the workplace right to disconnect whereby an employee may “refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable”. The FW Act also permits an employee to “refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee's working hours unless the refusal is unreasonable”.
Circumstances to be considered when deciding whether an employee’s refusal is unreasonable should include:
Whilst employees cannot be required or requested to work hours that are not ‘reasonable additional hours’ in accordance with the National Employment Standards of the FW Act, what constitutes reasonable additional hours varies from industry to industry. Nonetheless, a good working definition should include whether a requirement to work additional hours has the potential to create an unacceptable physical or psychosocial risk to an employee’s health and safety.
With an increasing move towards remote working models, it is easier for an employer to remain in contact with their employees outside of their normal work hours and the employee’s right to disconnect during reasonable additional hours should be assessed under similar criteria as to the right to disconnect outside normal works hours. Nonetheless, exceptions exist including for:
Should there be disagreement between employer and employee as to what constitutes ‘reasonable contact’ and whether an employee can rely on the right to disconnect to refuse or respond to contact, any dispute should first be dealt with between the employer and employee. However, if internal dispute resolution is unsuccessful, the parties can apply to the Fair Work Commission (FWC) to make a ‘stop order’ directing:
Key takeaways for employers and employees
To ensure they are observing and complying with the right to disconnect, the conscientious employer will provide their employees with accurate information about the right to disconnect including:
On 26 August 2024, the “Right to Disconnect” came into effect for employers (other than for small businesses with less than 15 employees) and will apply to all Australian employers as of 26 August 2025. Whilst it’s somewhat of a hot topic, the right to disconnect essentially codifies existing protections under the Fair Work Act 2009 (Cth) (FW Act) which already prohibits adverse action against employees who question or complain about their employment conditions. However, the right to disconnect clarifies this protection and highlights the importance of workplace flexibility. It emphasises the need for employers to respect employees' time off and avoid pressuring them to work outside of normal hours.
This is particularly relevant in today's changing work environment where many employees can work from home. The right to disconnect aims to ensure that employees can truly disengage and enjoy their time off without feeling obligated to respond to work demands.
Whilst receiving considerable media attention, the right to disconnect should not cause undue angst for employers who understand that appropriate time away from work is necessary for greater productivity when attending work.
What is the ‘Right to Disconnect’
Section 333M of the FW Act provides the workplace right to disconnect whereby an employee may “refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable”. The FW Act also permits an employee to “refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee's working hours unless the refusal is unreasonable”.
Circumstances to be considered when deciding whether an employee’s refusal is unreasonable should include:
- the reason for the contact or attempted contact;
- how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
- the extent to which the employee is compensated (which includes non-monetary compensation):
- to remain available to perform work during the period in which the contact or attempted contact is made; or
- for working additional hours outside of the employee’s ordinary hours of work;
- the nature of the employee’s role and the employee’s level of responsibility; and
- the employee’s personal circumstances (including family or carer responsibilities).
- notifying employees of shift changes;
- providing important employment information; or
- contacting employees about issues as required by law.
- contacting employees after hours for non-urgent tasks;
- contacting employees after hours when they're not compensated for being available; or
- contacting employees after hours when they have other responsibilities.
Whilst employees cannot be required or requested to work hours that are not ‘reasonable additional hours’ in accordance with the National Employment Standards of the FW Act, what constitutes reasonable additional hours varies from industry to industry. Nonetheless, a good working definition should include whether a requirement to work additional hours has the potential to create an unacceptable physical or psychosocial risk to an employee’s health and safety.
With an increasing move towards remote working models, it is easier for an employer to remain in contact with their employees outside of their normal work hours and the employee’s right to disconnect during reasonable additional hours should be assessed under similar criteria as to the right to disconnect outside normal works hours. Nonetheless, exceptions exist including for:
- emergencies or urgent situations;
- agreed-upon overtime or on on-call arrangements; and
- situations where the employee has explicitly consented to being contacted.
Should there be disagreement between employer and employee as to what constitutes ‘reasonable contact’ and whether an employee can rely on the right to disconnect to refuse or respond to contact, any dispute should first be dealt with between the employer and employee. However, if internal dispute resolution is unsuccessful, the parties can apply to the Fair Work Commission (FWC) to make a ‘stop order’ directing:
- the employer to stop requiring the employee to monitor, read or respond to contact or attempted contact, or to stop taking disciplinary or other action against the employee; or
- the employee to stop unreasonably refusing to monitor, read or respond to contact or attempted contact; or
- otherwise resolve the dispute in another way.
Key takeaways for employers and employees
To ensure they are observing and complying with the right to disconnect, the conscientious employer will provide their employees with accurate information about the right to disconnect including:
- being responsible for ensuring that their team members are aware of and understand their right to disconnect;
- respecting employees' right to disconnect and avoid sending work-related communications outside of ordinary hours unless it is reasonable to do so;
- leading by example by disconnecting from work outside of their ordinary hours;
- working with their team members to establish clear expectations around work-related communications outside of ordinary hours;
- conduct training for all workplace participants outlining expectations; and
- providing employees with up-to-date Fair Work Information Statements available on the Fair Work Ombudsman’s website (www.fairwork.gov.au).
- being available and responsive to work-related communications during ordinary work hours;
- being available to engage with work-related communications outside of ordinary work hours where it is reasonable to do so;
- setting clear boundaries around their work and personal time and to communicate these boundaries to their colleagues and managers; and
- being responsible for managing their work-related communications outside of ordinary hours in a way that supports their right to disconnect.
