By: Sian Gilbert and Dexter Cabal
At a glance
- From 26 August 2024, employees of organisations that employ 15 or more people will have a ‘right to disconnect’ outside of their normal working hours, unless their refusal is unreasonable.
- Employees of small business employers will have the right to disconnect from 26 August 2025.
- Whether an employee’s refusal is unreasonable depends on several factors.
- The Fair Work Commission may deal with disputes between an employer and employee.
With the right to disconnect becoming law this week, it’s not surprising that it’s making news headlines. But what is it and how does it affect your business?
The right to disconnect
The right to disconnect is a change to the Fair Work Act 2009 (Cth), which grants eligible Australian workers the legal right to refuse to monitor, read or respond to work-related contact (or attempted contact) from their employer¹ or from a third party² outside of their normal working hours, unless the refusal is unreasonable.
The right to disconnect came into effect on 26 August 2024 for employees of organisations that employ 15 or more people. Employees of small businesses (those with less than 15 employees) will get the same right in a year’s time on 26 August 2025.
What’s unreasonable?
Whether an employee’s refusal to monitor, read or respond to work-related contact outside of their normal working hours is unreasonable depends on several factors³. These include:
- the reason for the contact or attempted contact
- how the contact or attempted contact is made and the level of disruption it causes the employee
- whether the employee is being paid extra for being available to be contacted to perform work when the contact or attempted contact is made, or for working additional hours in addition to their normal hours of work
- the nature of the employee’s role and level of responsibility, and
- the employee’s personal circumstances, including family and carer’s responsibilities.
For example, if a senior facilities manager who is being paid to be on call is contacted outside of their normal working hours because there’s a fire in the building they manage, it would be unreasonable for the employee to refuse to respond based on the right to disconnect. In contrast, it would be reasonable for a junior event coordinator who works standard hours to refuse to answer a call at 10.00pm about catering requirements for an event in two weeks’ time.
While these examples are not particularly contentious, there are likely to be many disputes about whether refusals are unreasonable or not.
Resolving disputes
If right to disconnect disputes cannot be resolved at the workplace level, they can be dealt with by the Fair Work Commission (the Commission)⁴. The Commission can make orders that include orders to stop:
- an employee from refusing contact⁵
- an employer from taking certain actions⁶, or
- an employer from contacting the employee outside of their normal working hours⁷.
Under the Fair Work Act 2009 (Cth), people must not contravene a right to disconnect order made by the Commission⁸. If they do, they could be liable for a maximum penalty of 60 penalty units ($19,800). The Commission may also deal with the dispute by arbitration if the parties agree to that process.⁹
Potential impact on employers and insurers
With employees of organisations that employ 15 or more people now having the legal right to disconnect, employers – and their employees – will need to consider their work practices as they may need to be adjusted immediately to ensure compliance with the new laws.
Given the potential for right to disconnect disputes, insurers may also want to consider encouraging their insureds to take active dispute prevention measures, such as identifying who will and will not be contacted outside of normal work hours and how that contact will occur, and providing adequate training to employees (particularly senior employees) on the issue.
Our experienced Workplace + Safety team can assist employers with advice and training to help them navigate these new changes.
[1] Fair Work Act 2009 (Cth) s.333M(1)
[2] Ibid. s.333M(2)
[3] Ibid. s.333M(3)
[4] Ibid. s.333N(3)
[5] Ibid. s.333P(2)(a)
[6] Ibid. s.333P(2)(b)
[7] Ibid. s.333P(2)(c)
[8] Ibid. s.333Q
[9] Ibid. s.333V