Right to Disconnect
Most employers and employees in Australia are aware that a “right to disconnect” came into effect in August 2024. And yet, more than a year on from the introduction of an enshrined right to disconnect, there have been zero test cases before the Fair Work Commission (FWC).
The result has been very little clarity for Australian businesses about how the right should actually work. The FWC’s 2024-2025 annual report revealed it received seven applications under the relevant disconnect provisions within the reporting period. However, the mere lack of a test case does not mean that workplaces and practitioners are not seeing the seeds of these claims being sown.
Despite the absence of a FWC review and any significant case law, Australian workplaces are grappling with the right and how to balance the needs of their businesses with the privacy of their employees. The legislation itself states that disputes are to be first dealt with ‘at the workplace level’. Feedback about how the changes are being dealt with at first instance could be crucial to the FWC’s understanding of future disputes.
♦BACKGROUND
The right to disconnect is now a protected workplace right under the general protections regime of the Act. But what does that mean? And where did it come from?
Australia enacted its laws in 2024, but similar laws have been introduced in jurisdictions around the world for the last decade to address the impact of digital lifestyles on the always elusive “work-life balance”. The global pandemic shocked Australian businesses into creating flexible workplaces and has led to significant and lasting cultural change in employment arrangements.
It may be argued that the right itself is a natural one that is now enshrined in legislation, designed to regulate the contact of employees by employers outside working hours. It further seeks to empower employees to refuse to monitor, read or respond to any contact or attempted contact. That refusal, however, must not be unreasonable.
The right is a protected workplace right under the general protections regime in the Fair Work Act 2009 (Cth) (The Act). An employer cannot take adverse action against an employee because the employee has the right to disconnect or has used it. As an example, this could include an employer threatening to dismiss or reduce the hours of an employee who has reasonably declined contact outside work hours. The relevant provisions can be found in the Act at ss 333M-333W. As of 26 August 2025, the laws have also applied to small businesses.
The right is exercised by an order under s 333P that can stop an employer from taking disciplinary action against an employee for reasonably refusing contact, and further protect the employee from continuing, unreasonable contact. On the other hand, employers can be protected by using the legislation to stop an employee from unreasonably refusing contact. It may be becoming clear that the key to the protection lies in the reasonableness, or otherwise, of the employee’s refusal to be contacted. There are many factors at play in establishing reasonableness, for example:-
– Was the contact an emergency?
– Is the employee a senior person in the business who may expect contact?
– Was the employee compensated appropriately for availability?
– Should they expect to be contacted and to have to respond when necessary?
– Is the employee a carer or do they have competing responsibilities outside work?
– Was the contact a text message, an email the employee could choose to ignore or was it a knock at the door?
– Could this call have been an email?
Considering the time sensitive nature of issues to be dealt with by the laws, the FWC must begin to deal with an application within 14 days. It also has broad powers to make orders that an employee must stop refusing contact, to stop employers taking certain action, or to dismiss applications it considers to be frivolous or vexatious.
♦ EARLY SIGNS OF IMPACT
In lieu of case law, there is still evidence of the impact the changes are having on Australian workplaces. Research from the Australian HR Institute in 2025 surveyed 600 business decision makers about the impact the reforms had been having and found the following:
• 58% of employers overall had found that the right to disconnect had either ‘significantly increased’ or ‘somewhat increased’ employee engagement and productivity levels.
• When it came to public sector employers, this was particularly so with 75% reporting benefits to employee engagement and 77% reporting a significant or somewhat increase in productivity.
• Just 4% of respondents reported that the right had significantly, or somewhat, decreased engagement and productivity.
• Four in ten employers reported seeing benefits to work-life balance in their organisation that could be directly attributed to the legislation.
• Further, 37% had reported they had seen ‘mostly positive changes’ in the stress levels of their employees.
♦ WHAT NEXT?
In a statement made by the FWC on 21 August 2025, the bench said that guidelines concerning the right to disconnect will come once the FWC had dealt with ‘at least some disputes concerning the operation of the right’. In November 2025, the FWC postponed a proposed review for another twelve months – noting that without, a review ‘would have little to no utility’.
Only time will tell whether the right to disconnect is a source of significant workplace dispute in the future and how employers and employees navigate the law. As above, it is crucial to understand that the legislation is focused on whether an employee’s refusal of contact is reasonable, or not. It is not about whether it was unreasonable for the employer to contact the employee.
The legislation sets out that a workplace must deal with a right-to-disconnect dispute internally before any application to the FWC can commence. Therefore, expectation setting is a pivotal part of managing potential disputes around out-of-hours contact in a workplace. These expectations can be made clear in many ways – workplace policies, guidelines, training or even in an employment contract. In an ideal world, employees and employers should be able to have open and continuing conversations about whether those expectations are being met.
If you have a matter in your workplace you would like specific advice on, please get in touch with a member of our Workplace Relations team.
Author: Tess Armstrong
Published: 10 February 2026