The Right to Disconnect

In October’s HR Breakfast Club, Ash Borg from the Employment team led a compelling discussion on the new Right to Disconnect legislation, providing key insights and encouraging best practice behaviours for business owners and HR personnel, to answer queries and support compliance.

Ash’s discussion examined the following areas:

• The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 and the new Right to Disconnect;
• Employer obligations and consequences for breach;
• Psychosocial hazards in a WHS context; and
• Key lessons and takeaways for employers.

The Right to Disconnect

The Right to Disconnect came into force on 26 August 2024, with changes applying to small businesses approximately the same time in 2025. It includes a high-level right to disconnect for all national system employees, is a workplace right under the Fair Work Act 2009 (Cth) (‘FW Act) and requires all Modern Awards to include a new Right to Disconnect term under section 149F of the FW Act.

Under this new right, an employee may refuse to monitor, read or respond to, any contact or attempted contact from their employer or a work-related third party, outside their normal and regular working hours unless the refusal is ‘unreasonable’.

What is Unreasonable Refusal?

To determine whether an employee’s conduct constitutes an ‘unreasonable refusal’, a variety of factors must be considered. These include but are not limited to:

• The reason for the contact/attempted contact;
• The method of contact and consequent level of disruption caused to the employee;
• Whether the employee is compensated to be available/work during those hours;
• The nature of the employee’s role and responsibility;
• The personal circumstances of the employee; and
• If the contact is required by law.

If not resolved in the workplace, disputes regarding whether a refusal is ‘unreasonable’ may be referred to the Fair Work Commission, which can make an order preventing an:

• Employer from taking disciplinary action;
• Employer from continuing to require the employee to monitor, read or respond to out-of-hour contact; or
• Employee from continuing to unreasonably refuse out-of-hours contact.

Legal Consequences for Breach/Refusal

Breaching an order may result in up to 60 penalty units: $9600 for individuals or $18,780 for businesses, per contravention. Additionally, employers may be liable to additional legal consequences in the event they refuse an employee’s exercise of their Right to Disconnect, including but not limited to:

• General protections claims, including:
  • Where the employer takes adverse action against an employee who exercises their right to disconnect; or
  • Where the employee’s refusal is connected to a disability/injury/domestic or family violence/protected attributes or any other personal circumstances;
• Unfair dismissal claims;
• Breach of contract or underpayment (or wage theft) issues where the compensation is not adequate for out-of-hours contact;
• Work, health and safety enforcement and prosecution;
• Workers’ compensation claims where employee suffers psychological harm from out-of-hours contact or excessive workload, etc; and
• Discrimination claims where the employee’s refusal is connected to a protected attribute.

Reasonable Additional Hours

The Right to Disconnect will interact with the pre-existing limitation on working additional hours in the FW Act. Section 62 of the FW ACT mandates that employees must only work a maximum of 38 hours per week, unless an employer requests them to work ‘reasonable’ additional hours. Here, the ‘reasonableness’ of additional hours turns to employee-specific factors such as the employee’s personal circumstances, seniority, remuneration and other relevant features.

As outlined by Raper J in Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162, an employee must demonstrate the following to prove a breach of section 62:

• That the employee worked more than 38 hours per week with some precision; and
• Their employer did request or require the employee to work those hours, noting that an explicit written or oral direction is not required; employee could be allocated a task that is impossible to complete within working hours.

Ash went over the key considerations in Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 that led Katzmann J to finding that it was unreasonable to require the employee to work 12 additional hours, being health and safety issues, the fact that the employer did not pay Mr Boateng the appropriate overtime rate and an absence of credible evidence concerning usual patterns of work in the industry or part of the industry.

Work, Health and Safety; Psychosocial Hazards

Employers and their Officers have obligations under WHS legislation to ensure the health and safety of workers; WHS regulators are increasingly focused on psychosocial risks.

SafeWork Australia delineate psychosocial hazards as including, but not limited to:

• High job demands (e.g., long hours);
• Low job control;
• Lack of role clarity; and
• Inadequate reward/recognition.

Both COVID-19 and the flexible working arrangement provisions in the FW Act have normalised working remotely. This has introduced a myriad of psychosocial hazards, particularly that:

• Remote workers may be expected to monitor and respond to after-hours contact;
• Remote workers, especially those who WFH may struggle to ‘unplug’ from work;
• Employers have less control over the activities of remote workers; and
• Employers owe remote workers the same WHS duties as office workers.

In consideration of these new hazards, Ash suggested employers remain mindful of their WHS duties owed to remote workers and remain mindful that their work health and safety obligations continue to apply even where a worker is not present at the workplace, and performs work remotely, and that they implement appropriate control measures to ensure psychosocial hazards are reduced or eliminated. To that end, the new Right to Disconnect laws may serve as a useful signal to employers as to how to discharge their WHS obligations.

Key Takeaways and Practical Consequences for Employers

As a natural consequence of the new Right to Disconnect, there will likely be greater uncertainty surrounding labour needs for employers to consider. Additionally, employers must separate ‘time spent’ at work from other performance indicators. This poses additional challenges in industries such as law or banking and finance. Moreover, businesses must ensure that they are managing client and third-party expectations around contacting employees outside of work hours. Employers must also implement procedures for addressing grievances regarding the exercise of an employee’s Right to Disconnect. Lastly, Ash anticipated that employers may have to reconsider salaries and alter employment contracts to cater to ‘reasonable additional hours’ while balancing labour needs.

To resolve some of these complications and strive for best practice, Ash suggested the following actions for employers to take:

• Align their business operations to prevent excessive and/or unreasonable contact outside of ordinary working hours
• Inform clients and third parties to manage expectations
• Train HR and managerial staff to ensure employees who refuse after-hour contact are not subject to detriment, directly or indirectly
• Reassess compensation and bonus structures in contracts
• Draft policies and procedures on the right to disconnect and on dispute resolution by reference to:
  • The nature of the work
  • Protocols for managing third party contact
  • Interaction with flexible work arrangements

Closing Remarks

Despite the disruption that the Right to Disconnect may cause in workplaces, BAL Lawyers invites the cultural change towards a more authentic work-life balance in an increasingly digital and interconnected age. We recognise that encouraging staff to unplug enhances employee satisfaction and curbs burn-out.

If you have any questions or queries about your rights and responsibilities under the new Right to Disconnect, as either an employer or an employee, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.

To register for future HR Breakfast Club forums, visit our monthly forum page and register to attend.

If you are a HR professional in the ACT and would like to attend future HR Breakfast Club forums, visit our monthly forum page and register to attend. If you have any questions or queries about the information in this summary, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.

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