The ‘right to disconnect’ is coming to Australia: what employers need to know
New right to disconnect laws commenced on 26 August 2024 for non-small business employers. Small business employers – which are businesses with fewer than 15 employees – will be subject to the changes one year later from 26 August 2025.
The changes were introduced through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) and give employees a legal right to disconnect from all work communication outside of their contracted working hours. Whilst the new Australian laws won’t restrict employers or managers from contacting staff at any time, they will give employees the legal right to refuse to “monitor, read or respond to communications from an employer or third party made outside their working hours, unless refusal is unreasonable.” What constitutes ‘contact’ has not been defined by the legislation. However, it is expected that it will be interpreted broadly to include any efforts to engage with employees.
How will it work?
The right to disconnect will become a protected right under the general protection of the Fair Work Act 2009 (Cth). This means an employer cannot take adverse or disciplinary action against an employee who reasonably refuses contact outside their ordinary working hours. An employee must not be treated differently for choosing to disconnect, including by rostering or performance requirements or metrics.
Exceptions to the right to disconnect
Any employee’s decision to disconnect must be reasonable in the circumstances. The Fair Work Commission has provided a non-exhaustive list of factors which must be considered when determining if an employee’s refusal to respond is unreasonable, including:
the reason for the contact;
whether the employee is being compensated for being available to perform work within a specified period or working additional hours outside of their contracted hours;
the nature of the employee’s role and level of responsibility; and
the employees’ personal circumstances, including family or caring responsibilities.
Disputes about the right to disconnect
The Fair Work Commission (Commission) will have the jurisdiction to hear and resolve disputes about the right to disconnect which cannot be resolved at a workplace level. In dealing with a dispute, the Commission may make orders to:
prevent an employee from unreasonably refusing contact from their employer;
prevent an employer from contacting an employee outside of their work hours; or
prevent an employer from taking disciplinary action against an employee whose decision to disconnect has been deemed reasonable.
Next steps for employers
Now that these laws have been implemented, employers should get on the front foot and prepare for the right to disconnect by:
reviewing new and existing employment contracts and position descriptions to ascertain whether employees are remunerated with an expectations that they will contactable outside of regular working hours;
providing training and information to managers and employees regarding the new right to disconnect;
reviewing any current workplace policies about being contactable outside of regular working hours; and
preparing and implementing workplace policies, processes and expectations about out-of-hours contact in line with the new right to disconnect.
How can we help you?
Merton Lawyers are experts in providing bespoke commercial and employment advice, including keeping abreast of relevant changes in the law. If you have any questions about the right to disconnect or to discuss how we can assist you, please contact our corporate team on 03 9645 9500 to arrange for an initial consultation.
