Right to Disconnect Laws Passed

Following changes to the Fair Work Act 2009, many Australian employees now have the right to refuse to respond to contact from their employer outside of work hours. The changes, which came into effect on 24 August 2024, are contained in sections 333M and 333N of the Act. This page outlines the right to disconnect and why it has been introduced.

Who do the changes apply to?

The changes apply to all National System Employees, which includes most Australian employees. It does not include employees of local government or state government departments and agencies.

The changes will extend to small business employees starting on 24 August 2025.

What is the right to disconnect?

Under section 333M of the Fair Work Act 2009, an employee may now refuse to monitor, read or respond to contact, or attempted contact, from an employer (or from a third party making contact relating to work) outside of the employee’s working hours unless the refusal is unreasonable.

In determining whether a refusal is reasonable, the following is to be taken into account:

• the reason for the contact
• how the contact is made and the level of disruption it causes
• the extent to which the employee is compensated for remaining available to perform work outside of hours and for performing that work
• the nature of the employee’s role and their level of responsibility
• the employee’s personal circumstances.

A refusal to respond to contact is unreasonable if the contact is required under a law of the Commonwealth, or of a state or territory.

Disputes over right to disconnect

Under section 333N of the Fair Work Act 2009, disputes between employers and employees over the right to disconnect must first be addressed through discussions at the workplace level.

If a dispute cannot be resolved between the parties, the employee or employer may apply to the Fair Work Commission (FWC) for an order. The FWC may order the employer to stop the contact if the employee’s refusal to respond is reasonable. This is known as a stop order.

If a stop order is issued against an employer and the contact outside of work hours continues, the employer may be fined.

Reasons for the changes

In his second reading speech, Tony Burke, Minister for Employment and Workplace Relations said that the laws were essentially being passed because people should be paid when they work.

The changes were originally proposed by Adam Bandt in March 2023 after the tabling of the Senate Select Committee on Work and Care’s Work and Care Report. The committee investigated how Australians combine their work responsibilities with their responsibilities for caring for others.

The report found that ‘availability creep’ had made it common for workers to be expected to perform duties outside of hours. The shift to work-from-home arrangements during the pandemic further blurred the line between work and life outside of work. Among other things, the report recommended that an enforceable right to disconnect be included in the Fair Work Act 2009.  

Bandt’s second reading speech pointed to the increasingly blurred boundaries between work and leisure time and the growing pressure on workers to be available at all times. These trends have been exacerbated by smartphone use, insecure work, and rostering practices that often require workers to remain available and on call.

‘Right to disconnect’ provisions have been introduced in several other jurisdictions including France and Italy. Bandt urged the government to pass the bill in the interest of prompting a healthier work culture.  

Community responses

The right to disconnect provisions have been applauded by employment law and human resource experts who say that availability creep negatively impacts worker wellbeing. The changes have also been supported by unions, employees, and some independent senators. However, the Opposition and some employers have opposed the changes, with Opposition Leader Peter Dutton vowing to repeal the law if elected.   

Criticisms of the laws include that they lack clarity, particularly for sectors such as the tech sector that see themselves as ‘24/7 businesses’, and that they may bring about an end to flexible working arrangements.

It has also been pointed out that despite the wording of the right to disconnect provision if workers are not required to monitor their phones or emails outside of work hours except in relation to emergency situations, they will not be contactable in the event of an emergency either.  

The ACTU has dismissed these criticisms, saying that the laws are very sensible.

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