Right to Disconnect Australia — What the New Law Means for You

The right to disconnect is a new workplace right under the Fair Work Act 2009 that allows employees to refuse to monitor, read, or respond to contact (or attempted contact) from their employer or a third party related to work, outside of their working hours — unless their refusal is unreasonable. The law was introduced as part of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 and took effect on 26 August 2024 for non-small-business employers (those with 15 or more employees). For small businesses with fewer than 15 employees, the right takes effect on 26 August 2025.

This reform was driven by growing concerns about the blurring of work-life boundaries, particularly since the pandemic normalised remote work and constant digital connectivity. Research by the Australia Institute found that Australians were working an average of 5.4 hours of unpaid overtime per week, worth an estimated $130 billion annually.

The right to disconnect doesn't prevent employers from contacting employees outside hours — it simply gives employees the right to not respond if that contact is unreasonable.

So, the right to disconnect applies to all national system employees, which includes employees covered by the Fair Work Act. This encompasses employees of constitutional corporations (most private sector businesses), Commonwealth government employees, and employees in the territories. It covers full-time, part-time, and casual employees alike.

For non-small-business employers (15 or more employees on 1 February of the relevant year), the right commenced on 26 August 2024. Small businesses — those with fewer than 15 employees — have a transitional period and the right will apply to their employees from 26 August 2025.

The short answer? State public sector employees not covered by the national system may have separate arrangements under their relevant state legislation. Independent contractors aren't covered by this right, as they aren't employees under the Fair Work Act.

Award-free employees, award-covered employees, and enterprise agreement-covered employees are all entitled to the right to disconnect.

The Fair Work Act does not provide a fixed list of what is unreasonable — instead it sets out factors to consider. These include: the reason for the contact (emergency vs routine matter), how the contact is made (phone call vs email), how disruptive it is to the employee, the extent to which the employee is compensated for being available (such as on-call allowances or higher pay), the nature of the employee's role and level of responsibility, and the employee's personal circumstances including family or caring responsibilities. Contact is more likely to be unreasonable if it is routine administrative communication sent late at night, requests for non-urgent work that could wait until the next business day, or contact during periods of leave.

Contact is more likely to be reasonable if it relates to genuine emergencies, is from employees in different time zones with limited overlap, the employee is paid an on-call or availability allowance, or involves matters of workplace health and safety requiring immediate attention.

Employers must respect the right to disconnect and cannot take adverse action against an employee for exercising their right to refuse unreasonable out-of-hours contact. Adverse action includes dismissing an employee, altering their position to their detriment, discriminating against them, or threatening any of these actions. Employers should review their workplace policies and culture to ensure they align with the new right.

This may include updating employment contracts, policies on after-hours communication, and expectations around response times. Employers are encouraged to have discussions with employees about what contact outside working hours is reasonable, considering the nature of the role and the needs of the business.

The law does not prohibit employers from sending emails or messages outside hours — many workplaces operate across time zones or have flexible arrangements. However, employers should make clear that a response isn't expected until the employee's next working period, unless the matter is genuinely urgent.

Small businesses — defined as employers with fewer than 15 employees as at 1 February of the year — have been given a 12-month grace period. The right to disconnect doesn't apply to their employees until 26 August 2025. This transitional period recognises that small businesses often have limited HR resources and may need more time to adapt their practices.

Don't gloss over this. During this period, small business employers are encouraged to start preparing by reviewing their after-hours communication practices, discussing expectations with employees, and updating any relevant workplace policies. Once the right takes effect for small businesses, the same rules apply as for larger employers.

The employee count includes all employees (full-time, part-time, and casual) and is assessed as at 1 February each year. Associated entities are counted together when determining the headcount. After 26 August 2025, all national system employees regardless of employer size will have the right to disconnect.

If you want to exercise your right to disconnect, there are several practical steps you can take.

If you want to exercise your right to disconnect, there are several practical steps you can take.

• understand your workplace's expectations — check your employment contract, enterprise agreement, or modern award for any relevant provisions about availability or on-call requirements
• have a conversation with your manager about reasonable expectations for out-of-hours contact
• if you receive contact outside working hours that you believe is unreasonable, you're not required to respond

Clarify what constitutes an emergency and what can wait.

You don't need to provide a reason in real time — simply not responding is exercising the right. Fourth, if your employer takes adverse action against you for not responding to unreasonable contact, document the contact, your working hours, and any retaliatory behaviour. You should also check whether your employer pays you an on-call allowance, a higher salary, or overtime for out-of-hours availability — as this affects whether refusal is reasonable.

If a dispute arises about the right to disconnect, the Fair Work Commission (FWC) can make orders to resolve it. The process generally involves: first, the employee and employer should try to resolve the issue at the workplace level through discussion. If that fails, either party can apply to the FWC for a stop order.

The FWC will consider all relevant circumstances, including the factors for determining reasonableness listed in the Act. The FWC can order an employee to stop unreasonably refusing contact, or order an employer to stop requiring an employee to monitor or respond to unreasonable contact.

The FWC can also order an employer to stop taking adverse action against an employee for exercising their right. Penalties can apply for contravening an FWC order. For employees, the maximum penalty for contravening a stop order is up to 60 penalty units ($18,780 for an individual). For employers, the maximum is 300 penalty units ($93,900 for a body corporate).

These are civil penalties enforced through the Federal Circuit and Family Court.