In more detail
Refresher on the Right to Disconnect
Effective 26 August 2024 (and 26 August 2025 for small businesses), the 'Right to Disconnect' introduced a new workplace right, allowing employees to:
Refuse to monitor, read or respond to contact, or attempted contact, from an employer or third party (if the contact or attempted contact is work-related) outside of the employee's working hours unless the refusal is unreasonable.
Where disputes about the an employee's refusal to monitor, read or respond to contact or attempted contact could not be resolved at a workplace level, a party could apply to the Fair Work Commission for an order stopping certain actions (in favour of the employee, i.e., stop texting me); failure to comply with such an order could result in a fine. Employers could also apply for an order to stop an employee's refusal of reasonable contact.
Practitioners predicted that the Right to Disconnect may be a toothless tiger in the same way the anti-bullying jurisdiction was when it was introduced – a lot of fanfare and fear of claims, but ultimately, very few cases being brought to the Fair Work Commission for determination. This is particularly the case in circumstances where the Fair Work Act 2009 (Cth) already limits working hours to 38 hours per week plus reasonable additional hours, providing protections to employees who claim they are working additional or excessive hours.
Despite this, we expected that whilst businesses may not ultimately receive many applications dealing directly with the Right to Disconnect jurisdiction, employees would rely on the workplace right to bring general protections claims, alleging they were subject to disciplinary action, terminations, missed promotions, bonuses and pay increases because they exercised their Right to Disconnect.
One year of the Right to Disconnect
One year on, and it seems that those predictions were right.
In late August 2025, the Fair Work Commission issued a Statement confirming that the Right to Disconnect provisions of the Fair Work Act had not yet been substantively considered – the Commission has not yet considered any cases or resolved any disputes on the matter.
Despite this, we have seen a couple of cases refer to the Right to Disconnect in general protections claims. For example, a teacher has made a claim in the Federal Court of Australia seeking almost AUD 800,000 alleging that her employer breached her Right to Disconnect when it asked her to respond during the school holidays to a series of allegations against her, before it expelled her. We expect over time, we will see more claims refer to the Right to Disconnect, in general protections claims, in the same way we now see many general protections claims refer to allegations of workplace bullying.
Despite the limited update of the Right to Disconnect to date, we are still seeing some confusion from managers and businesses about what the right entails. It is important to note that the right does not prevent a manager contacting an employee outside of working hours. It simply allows the employee to refuse to monitor, read or respond to that contact unless it is unreasonable to do so.
Around the World
Other jurisdictions globally have already introduced rights and obligations similar to the Right to Disconnect, aimed at protecting employees from work-related stress and promoting better work-life balance by limiting after-hours work communication. For example:
- France was one of the first countries to legislate in this area in 2016, with the French Supreme Court having previously recognised the right in the early 2000s when it ruled that "The fact that an employee cannot be reached on his/her personal mobile phone outside working hours cannot be considered as a fault". The legislation allows employees to ignore devices after working hours. Companies with 50+ employees are also required to prepare "Charters of Good Conduct" setting specific hours when staff can send or receive emails.
- Portugal enacted the "right to rest" in 2022, making it unlawful for companies with 10 or more staff to contact employees outside of working hours during their rest periods, except in cases of force majeure, or else face fines. This right includes the employee's ability to remain offline and not respond to professional communications outside working hours.
- Spain also enacted a Digital Rights Charter in 2021 which included provisions related to the right to disconnect from work-related digital communications.
- More recently, the United Kingdom had also been considering introducing a right for workers to switch off. However, it appears that is no longer being considered but it does demonstrate the importance of the issue, which is being recognised globally.
Managing the Right to Disconnect
In the absence of claims in this area, it would be easy for businesses to be complacent about the Right to Disconnect. However, we expect that over time, the right will be more readily taken up, especially with the possibility of future amendments being made to increase utilisation in circumstances where there is significant focus on ensuring better work life balance and addressing psychosocial hazards in the workplace.
We recommend employers:
- Train managers and leaders on the Right to Disconnect. Ensure they understand the limitations of what they can and can't ask employees to do outside of working hours.
- Monitor workloads and align work expectations with hours and compensation to avoid inadvertent breaches of work health and safety legislation and minimum entitlements under a modern award or enterprise agreement.
- Consider whether it is appropriate to update employment contracts and/or implement a policy on the Right to Disconnect to set expectations with employees about their working hours and ability to be contacted outside of those hours.
