The Right to Disconnect Explained
/If you are an employer or plan to employ in future, the ‘right to disconnect’ is something that could impact you. This is a new employee right stating that legally, employees do not have to read or respond to work-related communication outside of work hours. If it is unreasonable for an employee to refuse to read or respond, the right does not apply.
Although the regulation that creates this right is not yet in force, we recommend that employers approach the right to disconnect proactively. This is because once the regulation is in force, if a dispute about unreasonable communication is not resolved in the workplace, you could be issued with a Stop Order by the Fair Work Commission (FWC).
Having a discussion with your employees about what expectations you have around communication is a good way to establish a mutual understanding of what reasonable and unreasonable communication look like. It will also minimise the likelihood of you receiving an employee Stop Order, which could result in penalties if breached.
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What is the Right to Disconnect?
The right to disconnect is established by The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 which introduces a change to the Fair Work Act 2009. This regulation change, which applies nationwide, falls under the heading of “a right to disconnect” for all national system employees.
This change makes clear that employees are not required to monitor, read, or respond to employer or work-related contact out of hours, unless refusing to do so is unreasonable.
Explaining the context:
The right to disconnect does not mean that employees are allowed to ignore communication, nor does it mean that employees should not receive communication.
It is that employees are allowed to raise concerns if their employers are making unreasonable requests for a response.
Communication between employers and employees is beneficial and is not a problem.
Unreasonable expectations of a response out of hours could become a problem.
The change commences on 26th August 2025 for small employers. Larger businesses will be subject to the new provisions from 26th August 2024.
Definition of ‘Small Business Employer’
A small business employer is an employer with fewer than 15 employees at a particular time. If an employer has 15 or more employees at a particular time, they are no longer a small business employer. When counting the number of employees, employees of associated entities of the employer are included. Casual employees are not included unless they are employed on a regular and systematic basis.
Source: FWO – Glossary & Acronyms – small business employer
Key Points of the Legislation
Employee Rights
Employees are permitted to disengage from work-related activities during their non-working hours.
The change states that an employee may refuse to:
Monitor, read or respond to contact or attempted contact from an employer (or third party relating to their work) outside of the employee’s working hours unless the refusal is unreasonable.
This right is a workplace right within the meaning of Part 3-1, General Protections of the FW Act.
Determining What is Reasonable
It is only when there are unreasonable expectations of a response out of hours that it becomes a problem.
Extract from Federal Register of Legislation – Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024:
(3) Without limiting the matters that may be taken into account in determining whether a refusal is unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) the reason for the contact or attempted contact;
(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
(c) the extent to which the employee is compensated:
(i) to remain available to perform work during the period in which the contact or attempted contact is made; or
(ii) for working additional hours outside of the employee’s ordinary hours of work;
(d) the nature of the employee’s role and the employee’s level of responsibility;
(e) the employee’s personal circumstances (including family or caring responsibilities).
(5) For the avoidance of doubt, an employee’s refusal to monitor, read or respond to contact, or attempted contact, from their employer, or from a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.
Other factors, like patterns of behaviour, may also be considered.
It is automatically considered unreasonable for an employee to refuse to respond if the purpose for the contact is required by law.
The right to disconnect does not mean that the employee is allowed to ignore communication or that the employee should not receive communication. It does mean that the employee is allowed to raise concerns if the employer is making unreasonable requests for a response.
Implementation
When a new employee begins employment, employers and employees should establish an understanding of what communication is reasonable and what the expectations are around communication. This should be reviewed each year, as well as when an employee’s job description changes.
The “right to disconnect” will be brought into all Awards. We also recommend that provisions are brought into Employment Agreements and that levels and methods of communication are discussed and understood by both employers and employees.
Benefits
For employees, the right to disconnect means having the freedom to disengage from work outside of their designated hours. This promotes better mental health and overall job satisfaction. It allows them to recharge and be fully present when they return to work, ultimately enhancing productivity and creativity.
Employers can also benefit from these changes, as acknowledging the importance of an employee’s personal time will cultivate a more engaged and motivated workforce. By acknowledging professional boundaries and considering the impact of after-hours communication, employers demonstrate commitment to employee wellbeing, which can lead to higher retention rates and a positive business culture.
Application to Modern Awards
The Fair Work Commission (FWC) will play a pivotal role in this amendment by incorporating industry-specific right to disconnect terms into modern awards through consultation with businesses and employees. This allows award terms to reflect the realities of different occupations and industries.
Dispute Resolution
Disputes between employers and employees regarding the right to disconnect should be resolved within the workplace whenever possible. However, if disputes cannot be resolved at the level of the workplace, parties can seek assistance from the FWC for a Stop Order. Employers can request an order for employees to stop unreasonably refusing to engage in work-related communication. Additionally, employees can request that their employer cease unreasonable contact. An employee Stop Order prevents disciplinary action against them for reasonable refusal.
Violating a Stop Order regarding the right to disconnect could result in civil penalties under the Fair Work Act. However, the government introduced a bill on 25th February 2024 (The Fair Work Amendment Bill 2024) that ensures that these breaches will not lead to criminal penalties.
What Practical Steps Can You Take Now?
A proactive and informed approach can effectively manage the implementation of this new legislation for your business. These laws are intended to complement existing obligations that businesses have to safeguard the psychological well-being of employees. Even if you don’t employ anyone at this stage of your business, this may change in time, and the principles of safeguarding should always be considered.
Employers should review and update work practices and policies to align with the new regulations. Providing managers with training on what the right to disconnect means is an important step in ensuring that everyone is on the same page. Moreover, employers should approach performance management processes with sensitivity and with consideration to the implications of the new right.
The new law has resulted in many employers seeking guidance on responding to the changes. The checklist below outlines some practical steps employers can take now in preparation for the start of the changes.
In Summary
An amendment to the Fair Work Act 2009 introduces a right to disconnect for employees.
This means that employees may, where reasonable, disconnect from work-related contact out of hours.
This legislation commences on 26th August 2025 for small employers and 26th August 2024 for larger businesses.
The Fair Work Commission (FWC) can issue a Stop Order upon request of an employer or an employee if a dispute cannot be resolved at the level of the workplace. Violating a Stop Order may result in civil penalties but will not lead to criminal penalties.
Employers and employees should establish an understanding of what the expectations around communication are and should review it regularly.
By embracing mutual respect and clear communication around expectations, employers and employees can confidently navigate this legislative change.
Source: Lexology – Preparing for... the "Right to Disconnect"
QiBalance Bookkeeping recommends the Right to disconnect fact sheet from the Department of Employment and Workplace Relations as a great resource to generate conversations with your bookkeeper
