The Right to Disconnect: What Employers Need to Know About the New Workplace Law

From 26 August 2024, a new workplace right entered Australian law, one that transforms how and when employers communicate with staff.

Under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, the Right to Disconnect was introduced into the Fair Work Act 2009 (Cth) via the new section 333M.

The reform applies to non-small business employers, those with 15 or more employees, and aims to support work-life balance in an increasingly connected world. But for employers, especially those managing rosters, shift work or urgent issues, the changes raise important compliance questions.

What is the Right to Disconnect?

The new law gives employees the right to refuse to monitor, read, or respond to contact (or attempted contact) from their employer or a third party outside working hours, unless the refusal is unreasonable.

Employees now have legal backing to ignore work-related messages after hours, and employers are restricted from taking adverse action against them for doing so.

What s333M Actually Says:

The legislation breaks this right into two categories:

1. Contact from employers:
   Employees may refuse to engage with any contact outside working hours, regardless of the reason, unless their refusal is unreasonable.
2. Contact from third parties (e.g., clients, suppliers):
   Employees may refuse contact only if it relates to work and the refusal is not unreasonable.

Importantly, the law does not prohibit employers from initiating contact. But it does protect employees from adverse consequences (e.g., disciplinary action or threats to job security) if they choose not to respond.

As clarified in the second reading speech before parliament:

“The bill is not about limiting the ability of employers to communicate with their employees. It will promote a healthier work culture that empowers working people to screen their boss’s calls when they’re off the clock.”

What Makes a Refusal ‘Unreasonable’?

Section 333M(3) of the Fair Work Act outlines the criteria for assessing whether an employee’s refusal to respond is unreasonable. Factors include:

(a)   The reason for the contact

(b)   How the contact is made and the level of disruption

(c)   Whether the employee is compensated for being available or working extra hours

(d)  The employee’s role and level of responsibility

(e)  The employee’s personal circumstances

This means context is everything. For example:

• A senior manager might reasonably be expected to deal with urgent matters.
• A casual employee receiving a shift request at 9pm on their night off may reasonably ignore it.

Practical Guidance for Employers

We’re already fielding questions like:

“Can I contact someone to fill a shift after hours?”

The answer is yes, however, that employee is now entitled to ignore the contact without penalty, and you must not take adverse action (e.g., pressure, discipline, retaliation) if they do not respond.

In time, as test cases make their way through the Fair Work Commission more definitive guidance will emerge.

Key Takeaways

• Employers can still contact employees—but employees have a right to not respond.
• No adverse action may be taken against employees who reasonably exercise this right.
• What’s “reasonable” depends on the employee’s role, compensation, and personal context.
• Internal policies may need updating to reflect the new regime.

At Bilbie Faraday Harrison, we regularly assist employers with navigating changes to workplace laws, including compliance with the new Right to Disconnect provisions. Whether you’re reviewing after-hours communication protocols, updating internal policies, or managing shift coverage concerns, we can provide practical, timely advice.

If you’re unsure how these new obligations apply to your business or would like help minimising risk while maintaining operational flexibility, please don’t hesitate to contact our team. Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.

The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.