The right to disconnect after 'clocking off': what you need to know

The new right to disconnect came into effect on 26 August 2024 for non-small businesses and comes into effect on 26 August 2025 for small businesses (fewer than 15 employees).¹

What is the right to disconnect?

The right to disconnect is a new workplace right for employees to ‘disconnect,’ or in other words, a right not to respond to attempts by their employer, third parties, or other employees to contact them outside of work hours. The right does not prevent employers from contacting their employees, but encourages employers and employees to set expectations about contact out of work hours and supports employees in ‘switching-off’ from work.

Unless the refusal is unreasonable, employees may refuse to monitor, read, or respond to contact (or attempted contact) from:

• an employer outside the employee’s working hours; or
• a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours.

For example, emails can still be sent to an employee outside their working hours, however the right to disconnect means the employee is not required to monitor their email and/or respond unless failure to do so would be unreasonable (see below).

The Fair Work Commission has now also amended modern awards to include an “Employees right to disconnect”, which is specific to each industry/occupation and further defines the right for employees covered by an award.

When is a refusal unreasonable?

The following factors must be taken into account:

• the reason for the contact or attempted contact;
• the method of contact or attempted contact;
• the level of disruption the contact or attempted contact causes the employee;
• the extent to which the employee is compensated (including with non-monetary benefits):
  • to remain available to perform work during the period in which the contact or attempted contact is made; or
  • for working additional hours outside of the employee’s ordinary hours of work;
• the nature of the employee’s role and the employee’s level of responsibility; and
• the employee’s personal circumstances (including family or caring responsibilities).

What is ‘outside working hours’?

Determination of whether the contact falls outside the employee’s working hours will involve consideration of the employee’s remuneration, working arrangement and other terms of their employment.

How will these changes impact 'on-call' workers?

Employees who are paid an on-call allowance, will not be able to rely on the right to disconnect in relation to contact that occurs during hours that they are being paid an allowance to remain available for work. It will be reasonable to contact a worker if they’re receiving an allowance to be on call.

‘Reasonable additional hours’

When requiring employees to perform work after hours, employers should have regard to the ‘reasonable additional hours’ provisions in the Fair Work Act 2009 (Cth) (FW Act).

Full-time employees must not work more than 38 hours a week (pro-rata for part time employees) unless the additional hours are reasonable. Refer to our previous article How much overtime can an employer reasonably expect of employees? for more information in how to determine whether additional hours are reasonable.

Find out the practical considerations and what to do when a dispute arises when employees 'disconnect' in our follow up article here. 

¹ By 26 August 2024, modern awards will also be amended to include a right to disconnect term commencing the same start dates.