Navigate the new workplace laws with the Australian Industry Group.

What is the right to disconnect?

From 26 August 2024 employees of medium-sized to larger businesses (employing 15 or more employees) will have the right to:

• Refuse to monitor, read or respond to contact from their employer outside of the employee’s working hours, unless that refusal is unreasonable.
• Similarly refuse contacts from “a third party” that relate to the employee’s work, which is likely to include clients and coworkers.

Whilst no definition of ‘contact’ is provided it is expected to encompass calls, emails, intranet messages, SMS messages, direct messaging, and however you usually communicate with your people. Both contact and attempted contact will be caught.

For small businesses, the new rules will apply from 26 August 2025.

Disputes

Both employees and employers will be able to take disputes to the Fair Work Commission, particularly where an employee has refused an employer, client or coworker contact, or objects to such contacts outside their working hours.

The Commission will be able to make orders if it is satisfied that:

• It is reasonable for an employee to refuse out of hours contacts from their employer, co-workers or clients and there is a risk that if the Commission does not make the order, their employer will either take disciplinary action against them or continue to require the employee to engage with out of hours contact.
• An employee is not acting reasonably, and is unreasonably in refusing to monitor, read or respond to contact or attempted contact from their employer, coworkers or clients and there is a risk that if the Commission does not make the order, the employee will continue to unreasonably refuse contact.

The FWC may make any order it considers appropriate to prevent:

• An employee from continuing to unreasonably refuse contact out of hours.
• An employer from taking disciplinary action or continuing to require the employee to be available for contacts beyond their usual working hours.

When will an employee’s refusal to connect be unreasonable?

Where a dispute arises in relation to out of hours contact, the Commission will consider a range of matters to determine whether the employee’s refusal to read, monitor or respond to contact is reasonable, including:

• The reason the employer or third party contacted, or attempted to contact, the employee.
• How the contact is made, and the level of disruption it causes to the employee.
• Whether the employee is paid to remain available to perform work during the period concerned (such as being on call).
• Whether the employee is paid for working additional hours outside their ordinary hours (such as a recall, call in, or overtime payment).
• The nature of the employee’s role and level of responsibility.
• The employee’s personal circumstances, such as family or caring responsibilities.

Backed by substantial penalties

Where the Commission makes orders, they need to be complied with. An employer breaching an order may be exposed to fines of up to $18,780 for an individual and $93,900 for a body corporate.

What employers need to know

Employers need to be aware of the new Right to Disconnect, able to answer questions from their employees, supervisors, shift managers etc, be confident of when it may or may not be reasonable to require employees to monitor for and/or respond to contact outside their usual working hours, and be able to update policies and procedures where necessary.   

Employers may also need to counteract any misperceptions that there is a blanket ban on contacting employees once their shifts end.

Ai Group was engaged with key decision makers throughout the passage of the new Right to Disconnect in early 2024 and will be at the forefront of its implementation.

Our expert team can work with your business to ensure your implementation of the right to disconnect reflects what is and is not required and is as practical and consistent with the needs of your business and its clients as possible.

Further assistance

There are many ways Ai Group can help you to navigate the new right to disconnect.

Ai Group members can:

• Contact the Ai Group Workplace Advice Line on 1300 55 66 77 for free telephone advice on workplace relations issues, including all aspects of the new workplace laws as well as interpretation of awards and enterprise agreements.
• Access our HR Resource Centre, which includes:
  • A Factsheet on the new right to disconnect
  • A series of written advices and reports regarding the development of the new laws. 
  • A Guide to the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and a Guide to the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024.
• Access a range of briefings, conferences and webinars covering changes to workplace relations laws & a raft of other resources
• Access Ai Group's ‘annotated awards’ services that have information on how key clauses in modern awards should be interpreted.
• Obtain personalised advice and assistance from Ai Group’s national team of workplace lawyers.

Ai Group & Ai Group Workplace Lawyers can also provide more detailed assistance on workplace issues, including your implementation of the Right to Disconnect. 

Not a member? Request a call or get in touch on 1300 55 66 77.