The right to disconnect will apply to employees of small business employers from 26 August 2025. (It has applied to non-small business employers since 26 August 2024).
Key Changes:
- The right to disconnect gives employees the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of their working hours – unless that refusal is unreasonable.
- The right also extends to contact (or attempted contact) outside of the employee’s working hours from a third party if work related (e.g. from customers or clients).
- This new right is aimed at preventing employees from being punished for refusing to take work calls or answer work emails outside of their usual working hours, unless the refusal is unreasonable.
What is it?
- A right for employees to refuse unreasonable attempts to contact outside work hours
- Prevents the employer from disciplining/disadvantaging an employee for reasonably refusing
What isn’t it?
-
A carte blanch rule of no contact with employees
What is reasonable?
Without limiting the matters to take into account, the Act lists these factors that must be considered in determining whether an employee’s refusal to be contacted is unreasonable:
- The reason for the contact or attempted contact;
- How the contact or attempted contact is made and the level of disruption it causes the employee;
- The extent to which the employee is compensated (including non-monetary compensation) to remain available to perform work or be contacted, or for working additional hours, outside of ordinary working hours;
- The nature of the employee’s role and level of responsibility; and
- The employee’s personal circumstances (including family or caring responsibilities).
What happens in the case of a dispute?
1. There needs to be an attempt to resolve at the workplace level
2. If the matter is not resolved, the employer or employee can apply to the FWC
3. The FWC may make an order to stop refusing contact, to stop taking certain actions, or to otherwise deal with the dispute
4. The FWC can only impose penalties if an order is breached
The right to disconnect will also be a workplace right for the purposes of the general protection regime under the Fair Work Act – giving employees an additional claim if, for example, they are allegedly disadvantaged or disciplined for reasonably refusing to monitor, read or respond to contact.
Practical Tips for Employers:
At a practical level, complete removal of contact out of hours is not always possible. There are times an employee will need to ring a supervisor to say they are sick, times the employer needs to text an employee to let them know that they are starting work at a different site that morning, and times the employer needs to ask an employee if they would like to pick up an additional shift. The impact of this legislation should not be a restriction on good communication practices between employees and employers.
What employers can do to find the right balance are things such as:
1. Review Position Descriptions – clarify what reasonable expectations are in relation to contact with the position outside of work hours (tailored to the role and level of responsibility)
2. Review Contracts of Employment – ensure there is clarity on expectations and, where relevant, a specific allocation of remuneration value if there are requirements to be on stand-by/on-call or other expectations on connection outside of work hours
3. Create a culture of disconnecting
- Train managers and employees on how to disconnect effectively
- Look at the business’s systems and practices for ways to reduce inadvertent or unnecessary contact
- Reconsider apps/access that consciously or subconsciously prevent disconnecting
- Implement cross skilling in key roles to reduce reliance on an individual which increases the likelihood of needing to contact them out of hours
4. Update Policies – ensure your Grievance, Conflict & Dispute Handling Policy provides an avenue for raising concerns internally
You can access our free Right to Disconnect Information Sheet here. For further support in navigating this new legislation, please reach out to our team.