On 26 August 2024, changes to the Fair Work Act 2009 (Cth) (the Act) took effect, granting employees the right to, ‘refuse contact or attempted contact from their employer outside the employee’s working hours’. This change is part of a global shift in workplace relations, spurred largely by an increase in flexible working arrangements which blur the line between ‘work’ and ‘home’. As an employer, it is easy to feel despondent about another legislative change designed to transform (or complicate) your employer-employee relationships. This article seeks to cut through the political aspects of the change and clarify what this right entails for employers in practice.
Employee right to disconnect
Division 6 of the Act grants employees the right to, ‘refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable’. This includes contact (or attempted contact) by third parties (e.g., clients) if that contact ‘relates to their work’.
In practice, ‘contact’ might include text messages, emails, or phone calls. Some commentary (and logic) suggests that more ‘urgent’ contact methods, such as phone calls, would be more indicative of a breach.
The Act sets out five ‘matters that may be taken into account’ in determining whether an employee’s refusal to respond to an employer’s contact or attempted contact outside work hours is ‘unreasonable’. These five matters broadly include:
- The reason for the contact or attempted contact (e.g., if the contact requests something to be done immediately outside of work hours).
- How the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee (e.g., the disruptiveness of emails versus phone calls).
- The extent to which the employee is compensated to remain available to perform work at the time of the contact or for additional hours outside of their ordinary hours of work.
- The nature of the employee’s role and their level of responsibility (usually employee seniority will weigh in the employer’s favour).
- The employee’s personal circumstances (including family or caring responsibilities).
Disputes about the employee right to disconnect
The Act is quite prescriptive about how disputes between employees and employers should be dealt with under these rules.
First, the employer and employee must attempt to resolve the dispute ‘at the workplace level’ by engaging in discussions between themselves. As with all matters involving ‘workplace rights’, employers should be careful in how these discussions are conducted. The following measures should be taken (at a minimum):
- the employee should be given the opportunity to invite a support person;
- the employer’s policies and procedures should be followed and made available to the employee prior to the discussions taking place; and
- the employer should ensure that a suitably qualified person (e.g., human resources) is present for the discussions.
Second, if discussions are not successful in resolving the dispute, either party may apply for an order from the Fair Work Commission (the FWC) to:
- make an order to stop refusing contact or to stop taking certain actions; or
- otherwise deal with the dispute.
It should be noted that the FWC’s remit to make orders is very broad, but it is not empowered to require ‘payment of a pecuniary (monetary) amount’.
The third (and perhaps most important) consideration is that contraventions of ‘workplace rights’ are also covered under a separate statutory regime which applies concurrently with the right to disconnect provisions. Under Part 3-1 of the Act, employers are prevented from taking adverse action against their employees because the latter party has (or has not) exercised a workplace right, or proposes to exercise a workplace right or has certain protected attributes. Orders made under this regime can include monetary awards (including pecuniary penalties).
We can assist employers with managing a claim made by an employee and ensure your processes are legally compliant. Call us on 1300 654 590 or email us.
Other considerations for employers
In practice, there are several other considerations that employers should be aware of:
- The insertion of Division 6 in the Act is a legislative change that does not require any changes to existing employment agreements (other than Enterprise Agreements). The FWC will be inserting a ‘right to disconnect’ clause into all existing Industrial Awards.
- The ‘right to disconnect’ automatically takes effect, and employers cannot require employees to contractually waive this right.
- It is important to ensure that senior staff (in particular) are aware of this right and that appropriate policies are enacted to ensure that the right is not infringed upon.
- Employers should ensure that no adverse action is taken against an employee who seeks to rely upon their right to disconnect (e.g., with respect to rostering, equipping, or altering the position of the employee). This may result in serious financial and reputational consequences for the employer.
In summary
The realm of industrial relations law continues to be disrupted by change. This can be frustrating as an employer owing to a lack of certainty and a steadily creeping regulatory burden. While the ongoing regulatory shift should be carefully considered by employers, enacting an appropriate response (i.e., through policies, training, and awareness) will be sufficient to keep you on the ‘right side’ of these changes.
If you want assistance with understanding how workplace laws may affect your business, contact ADLV Law on 1300 654 590 or at email us.
The information contained in this post is current at the date of editing – 05 August 2026
