An employee's 'right to disconnect' – what businesses need to know

A new right to disconnect is now enshrined in the Fair Work Act and will take effect from 26 August 2024. An employee will be entitled to refuse contact from their employer (or from a third party where the contact relates to their work) outside the employee’s working hours.

What Exactly is The Right To Disconnect in Australia

The right to disconnect currently applies to all Australian businesses with more than 15 employees as of 26 August 2024. It will be extended to businesses with fewer than 15 employees from August 2025. 

The legislation is set by Fair Work, who define it as 'employers having the right to refuse to monitor, read or respond to contact outside their working hours, unless doing so is unreasonable.' Contact includes the attempt to contact from any communication channels used to engage with employees. 

This right to refuse also includes work-related contact from third parties, such as clients, suppliers, staff from other businesses, or members of the public. 

When is an Employee's Refusal Unreasonable?

The right to refuse contact will not apply if refusal is unreasonable. Whether refusal is unreasonable will depend on a range of circumstances including:
• 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;
• the extent to which the employee is to remain available outside their ordinary hours;
• the nature of the employee’s role and their level of responsibility; and
• their personal circumstances (including family or caring responsibilities).

Small business will be exempt from these provisions for 12 months following the commencement of the new laws. 

If employers and employees cannot resolve disputes about the right to disconnect, the Fair Work Commission will be able to deal with disputes, including by making “Stop Orders” like under the current anti-bullying jurisdiction. Breaching a “Stop Order” may attract civil penalties.

This new right does not prevent employers from sending emails to employees after hours, but it will form part of the “protected attributes” for the purposes of the General Protections regime in the Fair Work Act.

We recommend employers should train managers on the new right and review employment contracts and policies and clarify whether a compensation package includes compensation for out-of-hours contact.

The Fair Work Commission is currently in the process of formulating the right to disconnect provisions to be incorporated in all Modern Awards.

Should you have any questions or concerns about these changes, ECA Legal is available to provide 30 minutes free legal advice to all ECA WA business members. 

Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on (08) 6241 6129 or email ecalegalwa@ecawa.org.au