Australia: The Right to Disconnect Q&A

The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.

There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.

With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in Australia.

This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.

1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?

A new right to disconnect for private sector employees in Australia commenced on 26 August 2024 (small businesses (less than 15 employees) will be covered from 26 August 2025). The right was introduced through an amendment to the Fair Work Act 2009 (Cth) (Fair Work Act).

Under this new statutory right, employees may refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of their working hours – unless that refusal is unreasonable. The right also extends to contact outside of the employee's working hours from a third party if work-related (e.g., from customers or clients).

This new right does not limit employers or others from contacting or attempting to contact employees – but provides protections for employees who choose to disconnect where there is a reasonable basis to do so.

An employee’s refusal to monitor, read or respond to contact or attempted contact will be unreasonable if the contact or attempted contact is required by law. The Fair Work Act also lists factors that are to be considered in determining when refusal of contact outside of working hours would be unreasonable. These include:

• the reason for the contact;
• how the contact is made and how disruptive it is to the employee;
• how much the employee is compensated or paid extra for:
  • being available to perform work during the period they’re contacted; or
  • or working additional hours outside their ordinary hours of work;
• the employee’s role in the business and level of responsibility; and
• the employee’s personal circumstances, including family or caring responsibilities.

Other matters can also be considered.

Australia's 155 modern awards (which are industrial instruments setting minimum terms and conditions for employees to whom they apply) have also been updated to include a right to disconnect clause in similar, though not identical, terms to the statutory right in the Fair Work Act. The modern award clause is briefly discussed in response to question 4.

Enterprise agreements (which are a form of collective agreement made by employers and typically with employees and sometimes unions) may also contain right to disconnect provisions. If the enterprise agreement right to disconnect term is more favourable than the right to disconnect in the Fair Work Act or modern award, then the enterprise agreement term will continue to apply.

2. Is the right governed by legislation, a code of practice or both?

As discussed above:

• the primary statutory right to disconnect is governed by the Fair Work Act; and
• a right has also been added to modern awards; and
• some workplaces may negotiate specific right to disconnect provisions in their enterprise agreements.  

The Fair Work Commission will be making written guidelines about the operation of the right to disconnect. Although not legally binding, they will be relevant to assessing compliance. The Fair Work Commission has determined that it will be in a better position to issue guidelines after it has had the opportunity to hear disputes about the operation of the right to disconnect.

3. Do all employees have a right to disconnect?

The right to disconnect under the Fair Work Act applies to 'national systems' employers and employees – in broad terms, those in the private sector and the federal government but excluding most state public sector or local government employees (these employees may however have a right to disconnect under their own local employment arrangements).

4. Are all employers obliged to provide the right to disconnect?

As noted above, the right to disconnect applies to national system employers and employees. However, even where it applies, it does not impose a positive obligation on employers.

Instead, it provides a right for employees to refuse to monitor, read or respond to unreasonable contact (or attempted contact) from their employer or third parties if work related outside of their working hours.

The modern award right to disconnect term discussed in question 1 does however state that employers must not directly or indirectly prevent an employee from exercising their right to disconnect. As these reforms are relatively new, we are yet to see how this obligation will operate in practice or be interpreted by the relevant tribunal, the Fair Work Commission, as well as any court.

The 'right to disconnect' also has broader significance for Australian workplaces as it interacts with:

• an employer's duty to ensure the physical and psychological safety of workers and workplaces so far as is reasonably practicable (which includes how much employees work and when);
• workers' compensation insurance claims for injuries or illnesses sustained in connection with work. In a recent workers' compensation claim, the relevant Commission was critical of the employer's failure to take account of the psychological impact on an employee of the employer's multiple attempts to contact the employee while on personal leave. The employee's psychological injuries were found to be compensable workplace injuries under the insurance scheme;
• the statutory restriction on an employer requiring or requesting an employee to work additional hours unless they are reasonable; and
• an employer's obligations in relation to pay, overtime and award compliance (e.g., will outside hours contact constitute directed or required overtime that triggers additional payments?). Underpayment claims are a significant issue for Australian employers, directors and senior leaders given the focus of the Fair Work Ombudsman as well as the prospect for senior leaders of personal liability (including potential imprisonment) under new wage theft laws.

5. What are the obligations on the employer?

As above, the right to disconnect under the Fair Work Act does not impose a positive obligation on an employer not to contact an employee outside their working hours.

That said the right to disconnect will have broader significance for the reasons outlined above in response to question 4.

As part of an employer's work health and safety duty to ensure the physical and psychological safety of workers and workplaces so far as is reasonably practicable, employers must, among other things, identify and take steps to remove or minimize harmful factors in the workplace that may adversely impact employees' mental health (e.g., excessive workloads, unsociable and/or long working hours). As part of this, it would be prudent for employers to implement preventative strategies such as workload management in designing jobs, flexible working arrangements, and to promote work-life balance – as well as respond to complaints from employees about their right to disconnect or excessive workloads etc. as and when they arise.

6. What happens if an employer fails to comply with its obligations?

If there is a dispute about the right to disconnect under the Fair Work Act, the parties must first attempt to resolve it at the workplace level.

If this fails, either party can apply to the Fair Work Commission to deal with the dispute. For example, an employer can seek an order that the employee stop refusing contact and the employee can seek an order to stop the employer taking certain actions.

Penalties can be imposed if an order is made and then breached – e.g., of up to AUD18,780 for individuals and AUD93,900 for corporations.

The right to disconnect under the Fair Work Act is also a 'workplace right' for the purposes of the Fair Work Act's general protections regime. Under, this regime, an employer must not take 'adverse action' against an employee or prospective employee for a range of prohibited reasons, including because the person has a workplace right, or has or has not exercised a workplace right.

Examples of unlawful adverse action in this context could include, for example, not promoting an employee because they have made a complaint about their right to disconnect, not paying a bonus because the employee was generally unavailable out of hours or dismissing an employee because they were not contactable outside their working hours.

If an employer takes adverse action for a prohibited reason, a court could order reinstatement or damages (with no cap) and penalties can be imposed. Also, a reverse onus of proof applies – which means the employer has to prove it acted for only lawful reasons.

Individuals can also be joined in a claim and could be fined up to AUD16,500 if they were “involved in the contravention”.

7. Have there been any reported cases on the right to disconnect?

To our knowledge, at the time of writing, there are no reported cases about the new right to disconnect in Australia.

8. What are the benefits and challenges of the right to disconnect in practice?

The right to disconnect is still a relatively new right for Australian workplaces. For this reason, it is fair to say that the intended benefits of this reform for employees, employers and workplaces more generally – such as increased work-life balance, improvements to employee mental health and related increases in productivity etc. – are yet to be seen in any practical and substantive way.

For employers, the practical challenges of this new right to disconnect include those discussed above – including:

• how can employers design jobs to take account of this new right and their broader positive duty to eliminate psychosocial risks in the workplace - without further guidance, it can be challenging for employers to determine what constitutes 'unreasonable' contact, especially for roles that require a high degree of flexibility or global businesses that operate across different time zones;
• how can payroll systems adequately record all work undertaken outside working hours to ensure award compliance, and what constitutes an employees' working hours for the purposes of this right? The term is broader than other terms describing an employee’s working arrangements in Australia, such as an employee’s ‘ordinary hours of work’; and
• how to manage performance where responsiveness is a common performance metric in some businesses and an expectation of clients and customers.

9. Has the right to disconnect had a significant impact on the workplace since it came into force?

The new right to disconnect is yet to have had any significant impact on Australian workplaces. However, anecdotally, it would seem employers (and managers) have an increased awareness of the impact of attempting out of hours contact, and of tools (such as the delayed send option with emails) that may assist in managing the associated issues.

On the other hand, there has also been commentary that the publicity around the introduction of this new right to disconnect has been overblown.

Since the introduction of this right however we have seen an increasing focus:

• from safety regulators in relation to psychosocial risks from long working hours in the workplace; and
• on underpayment claims for working additional hours / overtime.

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

Potential changes on the horizon that may impact the right to disconnect in Australia are:

• the Fair Work Commission will issue guidance on the right to disconnect in the future which may shed further light on how the right is to operate in practice and will be interpreted; and
• a federal election will take place in Australia on or before 17 May 2025. The main opposition party in Australia, the Liberal Party, has stated that, if elected, it would repeal the right to disconnect in Australia. Whether it would do so, remains to be seen.

AUTHORS FROM MINTER ELLISON
Gordon Williams, Partner
Kelly Halpin, Knowledge Lead