Employment Law
Right to Disconnect: What Employers Need to Know
Australia's right to disconnect legislation is one of the most significant employment law changes in recent years. Introduced as part of the Closing Loopholes reforms, it gives employees a new workplace right that affects how and when you communicate with your team outside normal working hours.
What the Law Says
The right to disconnect is contained in Section 333M of the Fair Work Act 2009, inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.
Key provisions:
- An employee may refuse to monitor, read, or respond to contact (or attempted contact) from an employer or third party outside their working hours, unless the refusal is unreasonable.
- Whether a refusal is unreasonable depends on: the reason for the contact, how the contact is made and the disruption it causes, the extent of compensation for being available, the nature of the employee's role and responsibilities, and the employee's personal circumstances.
- Employees can raise disputes about the right to disconnect through the FWC if they cannot resolve the matter directly with their employer.
- The FWC can make orders including requiring the employer to stop certain contact or requiring the employee to respond in specified circumstances.
What Employers Must Do
1. Review your after-hours contact practices
Audit how and why you contact employees outside work hours. Identify any patterns of non-urgent after-hours communication that could be shifted to business hours.
2. Develop a right to disconnect policy
Create a clear policy that sets expectations for after-hours contact, defines urgent vs non-urgent matters, and outlines the process for managing disputes.
3. Review on-call and availability arrangements
Ensure any on-call, standby, or availability requirements are properly documented, compensated, and reflect genuine operational needs.
4. Train managers and supervisors
Ensure managers understand the new right, know when contact is reasonable, and avoid creating a culture where after-hours availability is implicitly expected.
5. Use technology mindfully
Consider scheduling emails to send during business hours, using "do not disturb" features, and separating urgent from non-urgent communication channels.
6. Update employment contracts and handbooks
Review existing contracts and handbooks to ensure they align with the new right and do not contain clauses that contradict it.
Common Mistakes and How to Avoid Them
Mistake: Sending non-urgent emails late at night
Fix: Use email scheduling to queue messages for business hours. If you work late, make it clear that no response is expected until normal hours.
Mistake: Creating a culture of implied availability
Fix: Even without explicit requirements, if employees feel they must respond after hours to advance their career, you have a cultural problem. Address expectations explicitly.
Mistake: Taking adverse action against employees who disconnect
Fix: Do not penalise employees (formally or informally) for exercising their right to disconnect. This includes overlooking them for promotions or giving negative performance feedback.
Mistake: Not distinguishing between roles
Fix: Senior managers or employees with on-call provisions may have different expectations. Tailor your approach to the role and its documented requirements.
Penalties and Consequences
While the right to disconnect itself does not carry specific civil penalties for non-compliance, the consequences can be significant:
- FWC orders — The FWC can order employers to stop contacting employees unreasonably or to change after-hours contact practices.
- General protections claims — Taking adverse action against an employee for exercising their right to disconnect is a breach of the general protections provisions, carrying penalties of up to $93,900 (individual) or $469,500 (company).
- Stop orders — The FWC can make stop orders preventing certain types of after-hours contact.
When to Get Professional Help
Consider engaging an HR consultant when you:
- Need to develop a right to disconnect policy
- Want to review your on-call and availability arrangements for compliance
- Have received a dispute about after-hours contact from an employee
- Need to update employment contracts and handbooks
Jordan Firme Business Consultants helps employers navigate these new obligations with practical policies and training that protect your business while respecting employee rights.
Frequently Asked Questions
The right to disconnect came into effect on 26 August 2024 for non-small business employers (15 or more employees). Small business employers with fewer than 15 employees have until 26 August 2025 to comply.
Yes, you can still contact employees outside work hours. The right to disconnect does not prohibit contact — it gives employees the right to refuse to monitor, read, or respond to contact outside their working hours unless their refusal is unreasonable. The legislation considers factors like the reason for contact, how disruptive it is, compensation arrangements, and the employee's role.
An employee's refusal to respond may be unreasonable if the contact is required by law (e.g., emergency call-out), the employee is being compensated for being on call, the reason for contact is an emergency, or the employee's role inherently requires availability. Each situation is assessed on its specific facts and circumstances.
If the employee's refusal to respond is reasonable under the legislation, you cannot take adverse action against them for exercising their right to disconnect. Doing so could expose you to a general protections claim. However, if the refusal is unreasonable, normal workplace consequences may apply.
While a standalone policy is not explicitly required, it is strongly recommended. A clear policy helps set expectations, defines what constitutes reasonable and unreasonable contact, outlines any on-call or availability requirements, and demonstrates good faith compliance with the legislation.
If an employee is rostered on call or is compensated for availability outside normal hours (through an allowance, higher base rate, or on-call provisions in their award or agreement), this is a factor in determining whether their refusal to respond is unreasonable. Being on call generally means a refusal to respond would be unreasonable.
Need Help With the Right to Disconnect?
Our HR consultants can help you develop compliant policies and update your employment framework for the new legislation.
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