The Right to Disconnect is a ‘workplace right’ under the Fair Work Act 2009 (Cth) (the FW Act). The law took effect on 26 August 2024 for businesses with more than 15 employees, giving workers the right to refuse out-of-hours contact—unless that refusal is ‘unreasonable’. From 26 August 2025, the right will extend to employees of small businesses. Employees are not required to monitor, read, or respond to after-hours messages, and this protection applies to all forms of attempted contact.

Despite the way that this law has been interpreted in the wider Australian media, it’s important to note that there is no direct prohibition on employer conduct, it is not unlawful for an employer to make contact with employees out of hours. The ‘right to disconnect’ only relates to an employee’s new right refuse to monitor, read or respond. The critical test is when does this refusal become ‘unreasonable’. There are a number of indicia for this determination:

the reason for the contact
how the contact is made and how disruptive it is to the employee
how much the employee is compensated or paid extra for:
> being available to perform work during the period they’re contacted, or
> working additional hours outside their ordinary hours of work
the employee’s role in the business and level of responsibility
the employee’s personal circumstances, including family or caring responsibilities.

While the Fair Work Commission (FWC) encourages employers and employees to resolve disputes collaboratively, it has the power to intervene, including issuing stop orders or facilitating dispute resolution conferences. However, the right’s practical scope remains unclear.

The primary cause of action with significant financial or legal risk, only arises when an employer takes adverse action (such as dismissal, demotion, or other injury to employment) against an employee for reasons that include the employee exercising a ’right to disconnect’. This is merely an extension of the robust anti-victimisation provisions that have already existed in Australian law for decades, protecting a range of attributes relating the exercise of workplace rights, freedom of association, and anti-discrimination.

While the law grants employees a clear right to seek dispute resolution mechanisms, it has limited significance unless an employer takes adverse action against an employee for exercising it. Beyond this protection, its practical impact remains uncertain.

Despite its introduction into Australian law, uptake has been low. As of 17 February 2025, only four applications relating to the Right to Disconnect have been lodged with the FWC—a stark contrast to the 15,000 unfair dismissal claims filed annually. This raises questions about whether employees are hesitant to exercise the right, lack awareness, or face difficulties in enforcement.

As Australia navigates this new workplace entitlement, time will tell whether it becomes a meaningful protection or remains largely symbolic.

Brian Powles is a Partner at Walter Baden. He acts for employers across Australia in all areas of workplace law, including general protection applications, unfair dismissals, employment contracts, policies, breach of contract, workplace investigations, redundancy, restraint of trade, intellectual property disputes and discrimination.

GGI INSIDER No 136 March 2025

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