By David Collits Senior Associate | Australian Business Lawyers & Advisors

 
Twelve months ago, employees in Australia were granted the novel ‘right to disconnect’. On 26 August 2024, provisions in the Fair Work Act 2009 (Cth) (FW Act) conferring this right and regulating disputes about its operation commenced. Very recently on 26 August 2025, the provisions extended to small business employers, who had previously not been covered. 
 
The amending legislation which created the ‘right to disconnect’ also mandated all modern awards to include a right to disconnect term, including requiring the Fair Work Commission (FWC) to vary all existing awards.  

The scope of the right remains largely untested. The few cases indirectly mentioning the new right already, however, reveal a potential cultural shift. If it ever were the case that employees could be at their boss’s beck and call, those days appear to be numbered. At least for the ‘average’ worker, employers cannot expect to be able to contact them at any time regarding work matters, despite the opportunities modern information technology gives them. The importance of a worker’s leisure and ability to be disconnected from the pressures and expectations of work are underlined by the right. 

Precisely because of the novelty of the right and the potential for it to change the way that employers interact with their employees, businesses ought to pay close attention to the ‘right to disconnect’ and how to deal with it should disputes about the exercise of the right arise in practice. 


 

The new right explained 

Section 333M gives most employees in Australia the right, outside of their normal working hours, to refuse to monitor, read or respond to contact (or attempted contact) from their employee or a third party in relation to their work. An employee’s normal working hours will be determined by reference to the employment contract and any relevant industrial instrument. 

However, an employee’s refusal cannot be unreasonable. In assessing whether an employee’s refusal to be contacted is unreasonable, the following will be relevant: 

  • The reason for, and manner of, the (attempted) contact and its disruptiveness to the employee. 

  • The extent the employee is compensated to remain available to perform work during the time the (attempted) contact was made and to perform additional hours. 

  • The employee’s role and responsibilities.  

  • The employee’s personal circumstances (including family or carer responsibilities). 

An employee cannot insist without reference to the particular employment relationship that he/she can never be bothered outside of hours. A handsomely remunerated CEO or a doctor on-call who refuses contact is more likely to be acting unreasonably than a lower-paid labourer caring for his/her sick child in hospital.  
The FWC can deal with disputes about the right to disconnect. So long as the parties have attempted to resolve the dispute in the workplace, an employer can seek an order effectively compelling the employee not to refuse contact unreasonably. An employee can seek an order stopping the employer from disciplining or requiring the employee to respond if his/her refusal is reasonable. Failure to obey such an order is a contravention of the FW Act.  

 

Modern awards 

The FWC has also inserted a right to disconnect term into all modern awards. The terms generally prohibit an employer from preventing an employee exercising his/her right to disconnect, except in relation to contact specifically contemplated and authorised by the relevant modern award. 

 Importantly, in formulating a positive injunction binding on employers not to prevent the exercise of the right, the modern awards increase the scope of potential liability for employers. A breach of a right to disconnect term in a modern award can lead to the imposition of civil liability and orders to pay penalties and compensation. 

 

A ‘workplace right’ 

Also significantly, the right to disconnect is a ‘workplace right’ for the purposes of the FW Act, which increases the potential for litigation and risk of liability. An employer cannot take adverse action against an employee because the employee possesses the right to disconnect, has (or has not) exercised or proposes (or proposes not) to exercise the right. Unsurprisingly, adverse action includes dismissal but also includes other detrimental treatment of the employee.  

That the right to disconnect is a workplace right serves as a considerable check on an employer in how it responds to an employee who asserts the right. In the face of such an assertion, an employer cannot, without significant legal risk, dismiss the employee or take other action, including potentially directing the employee to monitor, read and respond to out of hours contact. The risk exists even if the employer thinks the refusal to respond is unreasonable. In ABLA’s experience, often employers must deal with claims in which tenuous and historic workplace rights are asserted, much to their inconvenience, expense and potential embarrassment. 

 

How employers can deal with practical scenarios 

Employers should proceed with caution in the face of assertions by employees of the right to disconnect.  

Before considering whether to attempt contact with an employee outside normal working hours, an employer should pause and consider: 

  • The reason for the contact and whether the contact is necessary to achieve a pressing and legitimate commercial, business, industry or professional end.  

  • The nature and timing of the contact. A telephone call at 10pm is likely to be more intrusive than a text message at 8am.

  • The employee’s level of remuneration and whether he/she is specifically compensated to be available outside of hours to perform additional work. An employee who is more highly paid is less likely to be able to refuse contact, especially if the employment contract has been appropriately drafted to include terms relating to after-hours work. 

  • The nature of the employee’s work and his/her seniority and responsibility. The more senior an employee, with greater responsibility, the more likely he/she can be contacted. 

  • The employer’s personal circumstances, including family or caring responsibilities.  


Highly relevant although not necessarily decisive will be the terms of the employment contract, which sets out employee’s remuneration, duties and responsibilities.  

If an employee refuses contact in circumstances which the employer considers unreasonable, the employer should not jump the gun and either seek to direct or discipline the employee. Instead, the employer should sit down with the employee during work hours and explain the expectations that his/her role has. Just as importantly, the employer should listen to the employee to ensure that it is aware of any personal circumstances which would justify refusing contact. If discussions fail, an employer can seek legal advice and/or approach the FWC for an order compelling the employee to be contactable and to perform work outside of hours. 

As ever, seek legal advice in complicated or less straightforward circumstances, and before disciplining or dismissing an employee for refusing out of hours contact, or for assistance with drafting your employment contracts.