The Fair Work Act now gives eligible workers the formal right to disconnect from work and reasonably refuse to respond to contact, or attempted contact, from their employer (or relevant third-party) outside of their normal work hours.
Let’s have a close look at the new regulations and what they will mean for your business.
What is the right to disconnect?
The 'right to disconnect' is a legal right for employees to reasonably refuse to monitor, read or respond to contact (or attempted contact) - e.g. email, text messages - outside of ordinary working hours.
Workers will also be able to raise a complaint about unreasonable out-of-hours contact with their employer.
The onus is on the employee and employer to resolve any issue at workplace level, but employees will be able to apply to the Fair Work Commission (FWC) for an order to stop the employer’s contact if the matter is unresolved.
Employers who fail to adhere to a stop order or take adverse action against an employee for exercising their right to disconnect could be fined.
Contact from an employer will be considered reasonable if:
- The worker is paid to be on-call or their job description requires it.
- The contact is during an emergency or to change conditions of work, e.g. location or hours.
When does the right to disconnect law come into effect?
The regulations apply from:
- 26 August 2024 for employers with more than 15 employees.
- 26 August 2025 for employers with fewer than 15 employees (small businesses).
All modern awards have been updated with clauses that explain how the right to disconnect applies to different industries and occupations, e.g. stand-by and call back provisions, emergency roster changes.
Enterprise agreements may contain a different right to disconnect term. If the term is more favourable to employees than the right in the Fair Work Act, it continues to apply.
Does it mean that employers cannot contact employees outside of their working hours?
The new regulations do not prevent employers from contacting their employees, but encourage employers and employees to set expectations about contact out of work hours and support employees in ‘switching-off’ from work.
Employees will have the right to refuse contact outside their working hours unless that refusal is unreasonable.
When will a refusal by an employee be unreasonable?
An employee’s refusal to monitor, read or respond to contact or attempted contact (disconnection) will be unreasonable if the contact or attempted contact is required by law.
If the contact or attempted contact is not required by law, these factors must be taken into account:
- The reason for the contact or attempted contact.
- The method of contact or attempted contact.
- The level of disruption the contact or attempted contact causes the employee.
- The extent to which the employee is compensated (including with non-monetary benefits):
- 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.
- The employee’s personal circumstances (including family or caring responsibilities).
Other matters may also be considered.
How will right to disconnect disputes and non-compliance be handled?
In the first instance, the employer and employee should attempt to resolve any disputes about an employee’s right to disconnect.
If that isn’t possible, employees or employers can lodge a dispute with the Fair Work Commission.
The FWC can either make a stop order (i.e. stopping an employee from continuing to unreasonably refuse contact or stopping an employer from continuing to contact an employee where they reasonably refuse contact or taking action against them for refusing) and/or deal with the dispute in other ways, e.g. by holding a conference.
The right to disconnect is also a workplace right under general protections, similar to an employee’s right to take time off if they are sick. These laws are protected rights all employees receive under the Fair Work Act.
An employer cannot take adverse action against an employee because of their rights at work, including the right to disconnect. Adverse action may include taking disciplinary action against an employee or terminating their employment.
Employees can also lodge disputes about general protections with the FWC.
What action should employers take?
We recommend that employers:
- Evaluate the nature of after-hours contact with employees. Consider whether it's reasonable and if there is an expectation of a response. For example, an email sent after hours may not require an immediate reply, whereas specific requests for responses outside regular hours do.
- Assess whether employees are compensated in a manner that reflects any expectation of after-hours contact.
- If an employee is compensated to work/respond out of hours, review whether you need to update their employment contract and job description to clearly outline the expectation of after-hours contact and clarify that they are compensated for doing so.
- Implement policies on working outside of normal hours and provide training to managers to ensure they are aware of employees’ legal right to disconnect and are not inappropriately contacting workers outside of hours or taking action that could be perceived as adverse against an employee who exercises their right to disconnect.
