Right to disconnect begins today
The Fair Work Ombudsman is reminding employers and employees that the new right to disconnect begins today for non-small businesses.
The right to disconnect is a change to the Fair Work Act as part of the new Closing Loopholes laws.
Employees of non-small businesses (a business employing 15 or more employees) now have the right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours unless that refusal is unreasonable. This includes contact (or attempted contact) from an employer or a third party.
Whether a refusal is unreasonable will depend on the circumstances. The following factors must be considered:
- the reason for the contact
- the nature of the employee's role and level of responsibility
- the employee's personal circumstances
- how the contact is made and how disruptive it is to the employee; and
- any relevant extra pay or compensation they receive for working additional hours or remaining available to work out of hours
Other matters may also be considered.
For employees of small businesses, the right to disconnect does not commence until 26 August 2025.
Fair Work Ombudsman Anna Booth said employers and employees needed to talk to each other about after-hours contact and set expectations suited to their specific workplace and the employee’s role.
“We encourage workplace participants to educate themselves on the right to disconnect and take a commonsense approach to applying it within their workplace,” Ms Booth said.
“It will be ideal if employers consult with employees and their unions on the policies that apply in the workplace.
“All modern awards now include a ‘right to disconnect’ term. This means that specific rules are now in awards for how the new right applies to different industries and occupations.
“Like most employment matters, any dispute should first be discussed and sought to be resolved at the workplace level.
“If that resolution does not occur, the Fair Work Commission (not to be confused with the Fair Work Ombudsman) can deal with disputes regarding the right to disconnect.”
The Fair Work Commission will be able to make an order, or deal with a dispute as it considers appropriate, to resolve the dispute.
The Commission can make any orders it considers appropriate, other than requiring payment of a pecuniary amount. This could include orders to stop employees from unreasonably refusing contact, or to stop employers treating an employee adversely or requiring them to monitor, read or respond to work-related contact (when an employee’s refusal is not unreasonable).
The Fair Work Ombudsman will have an enforcement role if there is alleged non-compliance with the Commission’s orders. An employer may be subject to penalties of up to $18,780 for an individual or $93,900 for a body corporate per contravention for contravening a Commission order in relation to the right to disconnect.
The right to disconnect does not prohibit employers from contacting their employees, nor does it prevent employees from contacting one another, including across time zones.
As a workplace right, general protections in the workplace will apply – meaning that in relation to the right to disconnect, eligible employees are protected from adverse action, coercion and more.
More information about the Right to Disconnect is available on the Fair Work Ombudsman’s website. The Department of Employment and Workplace Relations provides a fact sheet here. The Fair Work Commission has also produced educational materials about the right to disconnect. The Fair Work Commission is required to make guidelines about the operation of the right to disconnect and these are not yet available.
The right applies to most Australian workplaces (those under the national Fair Work system).
Other changes also commence today under the Closing Loopholes reforms to the Fair Work Act, including a new definition of casual employment, and a new definition of employee and employer. Businesses and workers are encouraged to access the FWO’s free information and seek advice where needed.
The Fair Work Ombudsman provides education, assistance and advice to employers and employees on pay and entitlements. We also promote and monitor compliance with workplace laws, inquire into and investigate breaches of the Fair Work Act, and take appropriate enforcement action.
The Fair Work Commission is Australia’s workplace relations tribunal and registered organisations regulator. They review and set the minimum wage each year, make awards and approve enterprise agreements, and help resolve issues at work.
See also a summary of the difference between the Fair Work Ombudsman and the Fair Work Commission.
Fair Work Ombudsman, 26th August 2024
