Right to disconnect

Changes to the Fair Work Act 2009, which take effect from 26 August 2024, create a new workplace right for workers to refuse to connect with employers after hours. This is done by creating a legal right for employees to refuse to monitor, read or respond to contact or attempted contact from their employer outside of their working hours unless the refusal is unreasonable.

The new right to disconnect covers contact from the employer, including calls, emails, texts, MS Teams messages and any other contact by an employer after hours that is not reasonable. If there is a dispute in relation to whether an employees refusal to connect is unreasonable, the Fair Work Commission will be able to hear disputes and make orders to apply in the future.

In determining what is reasonable, FWC will consider things like:

• The reason for the contact or attempted contact
• How the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee
• The extent to which the employee is compensated:
  • 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).

As this will be a ‘workplace right’, members must be careful in how they manage the situation so as to not create a ‘General Protections’ and/or unlawful termination risk.

These changes commence on 26 August 2024 for non-small business employers (an employer with more than 15 employees), and 26 August 2025 for small business employers (an employer with fewer than 15 employees).