The right to disconnect

The right to disconnect will be included in all Awards, as well as a workplace right under general protection laws. These laws are protected rights all employees receive under the Fair Work Act.

What is the 'right'?

The new 'right to disconnect' means that eligible employees will have the right to refuse contact outside of working hours, unless that refusal is unreasonable. This means an employee can refuse to monitor, read or respond to contact from an employer or a third party.

This change starts on:

• 26 August 2024 for non-small business employers
• 26 August 2025 for small business employers.

What is 'unreasonable'?

The new provisions explicitly state that the assessment of whether an employee's refusal to respond to contact will be unreasonable must consider:

• the extent to which the employee is remunerated to remain available for work, or to perform work, outside the employee's ordinary working hours;
• the nature of the employee's role and the level of the employee's responsibility;
• the reason for the contact or attempted contact and how it is made;
• the level of disruption caused to the employee by the contact or attempted contact; and
• the employee's personal circumstances, including family or caring responsibilities.

The right will not apply where the contact with the employee is required under a law. In such circumstances, the employee cannot rely on the right to refuse to respond. 

An employer will not automatically contravene the Fair Work Act by contacting or attempting to contact an employee outside their working hours. What employers will be prohibited from doing is dismissing (or taking other adverse action against) an employee who reasonably refuses to respond to out-of-hours contact.

By bringing the 'right to disconnect' within the adverse action framework, the changes to the Fair Work Act add a further basis upon which an employee may allege unlawful adverse action; claims in which the employer bears the burden of proof.

Disclaimer: This does not purport to be comprehensive or to render legal advice. You should not act based on any information contained in this publication without first obtaining specific professional advice. Consult your legal advisor to determine if this applies to you.