From 26 August 2024, most employers must comply with the new ‘right to disconnect’. Small businesses must comply from 26 August 2025. The Fair Work Act 2009 (FW Act) now includes the right to disconnect as part of the Closing Loopholes changes.

These changes grant employees a new workplace right to disconnect. They also establish procedures for resolving disputes related to this right.

These changes have generated considerable interest and discussion. While they represent a significant development, they may not be as daunting as they appear. This article provides a comprehensive guide for employers navigating these new regulations.

Quick Summary – How Does This Affect My Business in Practice?

The FW Act’s right to disconnect allows employees to refuse to perform work outside normal hours—it does not impose a specific obligation on employers.

Despite this, the right to disconnect has been included as a ‘workplace right’ for the general protection provisions of the FW Act. Therefore, employers must not take adverse action against employees who exercise or propose to exercise this right.

Additionally, the right to disconnect will become a term in modern awards. At the time of writing, the draft term prohibits employers from preventing an employee from exercising their right to disconnect. This term extends beyond the FW Act provision. We await the final version of the model term.

5 Steps to Prepare for the Right to Disconnect

• Step 1 – Conduct an audit: Identify which employees in your business may be expected to respond outside ordinary hours. If employees are routinely contacted outside work hours, consider whether process changes could reduce this.

• Step 2 – Communicate with employees and clients. Clearly communicate with employees about the right to disconnect to avoid misconceptions. Employees do not have a blanket right to refuse contact outside normal work hours but can refuse contact if it is not unreasonable.

• Step 3 – Identify communication habits. Consider how employees typically communicate (e.g., email, phone, SMS, Microsoft Teams) and whether you need to establish protocols.

• Step 4 – Consider implementing a policy. A policy should go beyond merely restating the right to disconnect. Use the policy to set expectations for the business, managers, and employees, and to establish the internal dispute resolution process.

• Step 5 – Train managers: Ensure managers do not contact employees unnecessarily outside normal work hours. Most importantly, ensure managers seek advice before taking disciplinary action against an employee who refuses contact outside normal work hours.

Frequently Asked Questions

What is an employee’s right to disconnect?

Employees have the right to disconnect from work communications outside normal working hours. The right does not prohibit contacting employees outside hours.  It allows employees to approach the Fair Work Commission (FWC) for ‘stop orders’ to prevent contact if their refusal is reasonable.

Employers can also request an order from the FWC requiring an employee to respond to contact if the employee’s refusal is deemed unreasonable. Before applying to the FWC, the parties must attempt to resolve the dispute at the workplace level.

What are the key changes made to the FW Act?

• Section 12 defines the right to disconnect.

• Section 333M provides a protected right for eligible employees to ‘disconnect’. This right is considered a workplace right under the general protection provisions of the FW Act.

• Section 333N outlines the dispute resolution procedures and requirements. Both employees and employers can seek FWC assistance to address disputes.

• Section 333P authorises the FWC to issue orders preventing an employee from unreasonably refusing contact or preventing an employer from acting against an employee for a reasonable refusal. It also prevents employers from continuing to require contact despite the employee’s refusal.

• Section 333Q provides civil remedies for contraventions of orders under section 333P.

• Section 333W requires the FWC to issue written guidelines about Div 6’s operation.

• Section 149F provides that modern awards include a right to disconnect term. The model term for modern awards is yet to be finalised.

When is an employee’s refusal to monitor, read, or respond to contact outside their working hours unreasonable?

An employee can refuse to monitor, read, or respond to contact outside their work hours unless it is unreasonable to do so.

Factors that may determine whether a refusal is unreasonable include:

• the reason for the contact or attempted contact;

• how the contact or attempted contact is made and its level of disruption;

• the extent of the employee’s compensation (including non-monetary);

• the employee’s availability to perform work during the contact period;

• working additional hours beyond ordinary work hours;

• the nature of the employee’s role and level of responsibility;

• the employee’s personal circumstances (including family or caring responsibilities); and/or

• whether the contact is required under any Commonwealth, state, or territory law.

What happens when the employer and employee disagree about the right to disconnect?

The dispute resolution procedure in section 333N applies if the employee refuses to monitor, read, or respond to contact or attempted contact and:

• the employer reasonably believes the refusal is unreasonable; or

• the employer asserts that the refusal is unreasonable and the employee reasonably believes it is not; or

• there is another dispute about the right to disconnect.

What types of stop orders can the FWC issue regarding a dispute about the right to disconnect?

If requested by one of the parties, the FWC can issue a stop order if it determines that:

• the employee has unreasonably refused contact or attempted contact and/or risks continuing to do so; or

• the employee’s refusal is not unreasonable and there is a risk the employer will take disciplinary or other action due to the belief that the refusal is unreasonable; or

• the employee’s refusal is not unreasonable and there is a risk the employer will continue to require the employee to monitor, read, or respond to contact despite the refusal.

The FWC may issue orders to:

• prevent the employee from continuing to unreasonably refuse to monitor, read, or respond to contact.

• prevent the employer from taking action against the employee.

• prevent the employer from continuing to require the employee to monitor, read, or respond to contact.

What timeframes apply to the FWC when an application is received?

The FWC must begin addressing an application within 14 days of its receipt and deal with it as soon as reasonably practicable.

What penalties apply for contravening an order of the FWC?

Contravening an order may result in pecuniary remedies.

Are there other ways to handle a dispute about the right to disconnect?

If a party requests the FWC to handle a dispute and it does not consist solely of an application for an order, the FWC must address the dispute. If the parties agree to arbitration, the FWC may handle the dispute by arbitration. The FWC may also use other methods, including mediation, conciliation, making recommendations, or expressing opinions.

Are there any practical examples of how the right to disconnect is intended to operate?

No. The non-Government Senate amendment added the right to disconnect provisions to the Amending Act. Thus, the explanatory memorandum lacks information about these provisions.

The amendment’s mover in the Senate described the provisions as intended to ‘rebuild the boundary around workers’ personal time and create a safeguard for that time’ and ‘reduce unpaid working time and wage theft.’

The information in this update is a guide only. Seek professional advice before applying any information to specific circumstances. EmploySafe Legal does not accept liability for any errors contained in this update.

Kate Simpson 
Managing Director – Employment & Safety Lawyer 
+61 420 972 497 
kate.simpson@employsafelegal.com.au