Right to Disconnect laws are starting

The right to disconnect provisions take effect on 26 August 2024 or 26 August 2025 for small business employers.

The provisions give an employee a workplace right to refuse to monitor, read or respond to contact, or attempted contact outside of their working hours from:

• their employer, unless the refusal is unreasonable; and
• a third party (such as a customer or client), if the contact or attempted contact relates to the employee’s work, unless the refusal is unreasonable.

The Fair Work Commission (FWC) will be able to deal with any disputes about the right to disconnect and make any orders that it considers appropriate to:

• prevent an employee from continuing to unreasonably refuse to connect.
• prevent an employer from taking disciplinary action or any other action against an employee because of the employer’s belief that the refusal is unreasonable; or
• prevent an employer from continuing to require the employee to connect.

The FWC is also required to produce written guidelines about how these provisions will operate.

When is the refusal unreasonable?

An employee may exercise a right to disconnect outside of working hours, unless the refusal to connect is unreasonable.

The following factors must be considered in determining whether an employee’s refusal to connect outside of their working hours is unreasonable:

• The reason for the contact or attempted contact.
• How the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee.
• The extent to which the employee is compensated:
  • 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).

Employee’s working hours

The right to disconnect applies to any contact or attempted contact outside of the “employee’s working hours”.

There is no definition of an “employee’s working hours” in the Fair Work Act 2009 (Cth) (FW Act) however, it is expected that an employee’s working hours would cover when an employee is performing work, including ordinary hours and overtime.

Does it apply to casuals and part-time employees?

Yes. The right to disconnect applies to full-time, part-time and casual employees.

What are some practical considerations for employers?

Employers should identify whether there are any roles where contact outside of working hours is likely. For example, an employee with managerial responsibility may need to be contacted outside of their working hours to be informed of any absences, or employee transport issues.

Some roles require employees to be available or on-call outside of their working hours, therefore contracts may need to be updated to make this clear.

Employers should also identify the reason for any contact that is made outside of the employee’s working hours. If an immediate response is not required, it is best to wait until the employee is back at work.

Finally, employers should establish a communication process with employees, customers and suppliers outside of working hours. Some businesses may have an answering machine service on their company phone numbers that specify the trading hours and advise of the operating hours.