From 26 August 2024, there’s an important change in employment law you should know about – the “right to disconnect law.” This means employees now have a general right to say “no” to work contact outside of their usual hours, with some exceptions.
The Fair Work Act 2009 (Cth) now includes section 333M, which defines the right to disconnect as “refusing 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.”
So, when is it “unreasonable” to disconnect? Here’s what section 333M(3) says employers should think about:
- The reason for the contact – Is it an emergency or just a routine check-in?
- How the contact is made – Is it a quick text or an urgent phone call?
- Compensation – Is the employee paid to be available or to work extra hours?
- Job role and responsibility – Is the employee in a senior role or one that typically requires extra hours?
- Personal circumstances – Does the employee have family or caring responsibilities?
However, if the contact is legally required (under a Commonwealth, State, or Territory law), the employee must respond, regardless of their personal preference.
What’s expected from employers? Recent changes to modern awards now make it clear: employers can’t prevent employees from exercising their right to disconnect. But, keep in mind, each award might have specific situations that outline when a refusal to respond would be unreasonable, tailored to that particular job or industry.
To learn more, check out the Fair Work Ombudsman’s website for examples: Fair Work Ombudsman – Right to Disconnect
Sorting Out Disputes And The Role Of The Fair Work Commission
If there’s a problem with out-of-hours contact, start by trying to resolve it within your workplace. Can’t agree? Either party can turn to the Fair Work Commission (FWC) for help in deciding whether the refusal was unreasonable.
The FWC process usually begins with conciliation – a chance to talk it through. If that doesn’t work, the dispute moves to a formal hearing with witnesses and legal arguments. Keep in mind: even if the employee wins, the FWC can’t award compensation.
Practical Tips For Employers
Here’s how employers can stay on the right side of these changes:
- Be upfront about the role’s requirements and the need for any out-of-hours contact from the start – include it in job ads, employment agreements, and policies.
- Clarify how often and how contact will happen outside of work hours.
- Clearly outline compensation for out-of-hours contact in employment contracts (e.g., using a salary set-off clause or paying standby/recall allowances).
- Stay aware of employees’ personal circumstances and adjust contracts and rosters as needed.
- Seek legal advice if a dispute arises, as it could turn into a broader issue involving general protections under the Fair Work Act 2009 (Cth).
What’s Coming Next?
Peter Dutton has announced that if the LNP wins the next Federal election, they plan to scrap a range of workplace laws introduced by the ALP, including these right-to-disconnect rules. But until then, it’s essential to be across these changes.
If you have any questions or need guidance on this new law, don’t hesitate to reach out to the MST Lawyers’ Employment Law team on +61 3 8540 0200 or email workplace@mst.com.au.
Key Takeaways
- New Right to Disconnect: Employees can say “no” to contact outside of work hours unless it’s unreasonable.
- Unreasonable Refusal Factors: Think about the reason, method, compensation, job role, and personal circumstances.
- Dispute Process: Start at the workplace, then go to the Fair Work Commission if needed.
- Potential Changes Ahead: These laws might be repealed if there’s a change in government.
- For small business employers and their employees, the right to disconnect provisions apply from 26 August 2025.
If you have any questions in relation to this article, please contact the MST Lawyers’ Employment Law team on +61 3 8540 0200 or email workplace@mst.com.au.
Article by Chao Ni, Principal
