The right to disconnect has arrived. Here’s what employers must know

August 26 has ushered in a swathe of major workplace relations reforms, including the long-awaited right to disconnect.

The right is an unusual one, and has caused a considerable amount of consternation.

Here’s a quick SmartCompany guide to what the right is, how it will affect businesses, and how Australia’s workplace watchdog intends to manage the new rules.

What is the right to disconnect?

The right to disconnect gives workers the right to refuse contact from their employer, or another person in relation to work, outside of their working hours — unless that refusal is deemed unreasonable.

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We’ll touch on what ‘unreasonable’ refusal looks like in a moment.

Before going further, it is important to understand the rules do not totally forbid employers from contacting their employees out of hours.

Rather, the new rules protect employees who don’t want to take a work-related phone call when they’re on the train home or trying to unwind on holiday.

On a technical level, the right to disconnect will be reflected in variations to modern awards; all 115 awards will be amended to include the right to disconnect.

What employers are covered from August 26?

Non-small-business employers, defined as those with 15 employees at any one time, must comply with the new right to disconnect rules from Monday.

Small business employers will have another year to adapt, with the rules coming into play from August 26, 2025.

Why are the changes coming in?

The federal government and the Greens agreed to include the right to disconnect in last year’s landmark Closing Loopholes industrial relations reform package.

Former Workplace Relations Minister Tony Burke said the measure was intended to stop employees from working hours they were not compensated for.

What counts as ‘unreasonable’ refusal to respond?

There is no one-size-fits-all approach to the right to disconnect, and a host of factors must be considered when determining if an employee is within their rights to ignore after-hours emails.

A non-exhaustive list of considerations include:

• The reason for the attempted contact,
• How well the employee is compensated for remaining available to work, ie. if a worker is on call,
• The responsibility or seniority a worker has within a workplace,
• Whether the worker is required under state or federal law to stay available,
• How contact is made, and the level of disruption it could cause, and
• Caring or family responsibilities of the employee.

The Fair Work Commission on Friday confirmed there is no immediate black-and-white answer to what kinds of out-of-hours are appropriate.

It said detailed guidelines for employers and employees are on the way, but will only arrive after it assesses how the right to disconnect operates in the real world.

“We will be in a better position to make the guidelines after we deal with some disputes about how the right works,” it said.

How will this be enforced?

First and foremost, the FWC wants these disputes to be handled in the workplace itself.

However, if difficulties persist, both employees and employers will be free to ask the FWC to make a stop order related to this new right.

These orders can stop:

• Employees from continuing to unreasonably refuse contact out-of-hours,
• Employers from continuing their out-of-hours contact, and
• Employers from taking adverse action against workers who refuse out-of-hours contact.

If the FWC determines a party has breached a stop order, the workplace watchdog may seek civil penalties through the courts.

The legislation states these contraventions could attract a maximum of 60 penalty units — or the equivalent of $18,780 at the time of writing.

Again, it must be stressed, employers won’t face civil penalties for simply reaching out to employees; it is the breach of a stop order that will attract the FWC’s fury.

What rules are not part of the right to disconnect?

In the consultation process to determine how the right to disconnect will appear in the modern awards system, the ACTU argued the rules should go beyond those spelled out by the Closing Loopholes bill.

It wanted rules allowing workers not to hand over their personal details for the purpose of out-of-hours contact, and rules stating that simply handing an employee a work phone or laptop did not mean they were open to OOO requests.

The FWC will not implement those extras in the modern awards system, as it wants the term to be as simple as possible (for now, at least).

Here’s what Justice Hatcher had to say on Friday:

We have determined not to make any fundamental changes to the draft term, which is intentionally minimalist in nature reflecting the novelty of the right to disconnect and the likelihood that future variations to the term in particular awards will be necessary once the issues affecting specific industries and occupations are better understood.

What else should I know?

Communications from the Fair Work Commission acknowledge the right to disconnect is a pretty novel addition to Australia’s industrial relations framework, and reflects a very modern view of work.

While legislation means the right is set to stick around, the FWC will also review its operation after 12 months.

“As part of the review you will be able to tell us about any practical difficulties that you have found using the term,” it said.

“You can also apply to change (vary) the terms in any award before the review.”

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