Employers urged to ‘educate themselves’ on right to disconnect changes
The Fair Work Ombudsman is encouraging employers and employees to set expectations around out of hours contact with the right to disconnect starting yesterday.
The right to disconnect reforms, which were passed as part of the government’s Closing Loopholes laws, commenced yesterday for businesses employing 15 or more employees.
The Fair Work Ombudsman has reminded employers and employees that employees will now have the right to refuse to monitor, read or respond to contact outside of their working hours, unless that refusal is unreasonable.
This includes contact from an employer or a third party.
Whether a refusal is unreasonable will depend on the circumstances, the Fair Work Ombudsman said in a recent update.
Factors that must be considered include 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.
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,” said Booth.
She said that ideally employers should 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.”
Where a resolution does not occur, the Fair Work Commission will 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,” the Fair Work Ombudsman said.
“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 also have an enforcement role where 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 Ombudsman said.
The ombudsman stressed that 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," it said.
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