The right to disconnect under the Fair Work Act 2009 applies from 26 August 2024 for non-small business employers and from 26 August 2025 for small business employers.
Section 333M of the Act provides that an employee can refuse to monitor, read, or respond to contact, or attempted contact, from their employer or a third party if the contact relates to their work and is outside their working hours, unless the refusal is unreasonable.
Sub-section 333M(3) sets out a non-exclusive list of matters that can be taken into account to determine whether the refusal is unreasonable, including:
- The reason for the contact;
- How the contact is made and how disruptive it is to the employee;
- The extent to which the employee is compensated to be available or to work outside their normal hours;
- The nature of the employee’s role and their level of responsibility;
- The employee’s personal circumstances including any family or caring responsibilities.
All modern awards are required to include a right to disconnect provision. See the Fair Work Commission‘s webpage for more information on variations to awards.
The right to disconnect is a workplace right for the purpose of s 341 of the Act, which means the adverse action protections apply.
The Fair Work Commission can deal with disputes about the right to disconnect, including by making orders to stop an employee refusing contact or an employer requiring it. Contravention of an order is a civil remedy provision under Part 4-1 of the Act for which fines apply.
The commentary and precedents in the By Lawyers Employment Law guide have been updated accordingly.