Understanding your employee's right to disconnect

Employees of non-small business employers have a workplace right to disconnect, whilst small business employees will have the right to disconnect from 26 August 2025. 

Modern awards

This right is included in all modern awards. The modern award clauses provide that employees have the right to disconnect, in accordance with section 333M of the Fair Work Act. So what does this mean?

What is the right to disconnect?

Outside of their working hours, employees may refuse to monitor, read or respond to contact or attempted contact from their employer or another person if the contact is work-related, unless the refusal is unreasonable. Third parties may include clients or members of the public.

This does not mean that employers are prohibited from contacting employees outside of business hours. Employees can simply elect to not be contactable, monitor or respond to communications. The modern awards explicitly state that employers are not prevented from contacting or attempting to contact an employee outside of the employee’s working hours regarding emergency roster changes or a recall to work (for example).

Importantly, the modern awards clause make it clear that the right to disconnect does not prevent an employer from requiring an employee to monitor, read or respond to contact, or attempted contact, from the employer outside of the employee’s working hours, where the employee is either paid a stand-by allowance and the employer’s contact is to notify the employee that they are required to attend or perform work or give other notice about the stand-by.

When is an employee’s refusal unreasonable?

Of course, there will be situations where a refusal for contact is unreasonable.

To determine whether a refusal is unreasonable, the following factors must be taken into account:

• The reason for the contact or attempted contact; 
• How the contact or attempted contact is made and the level of disruption it causes the employee; 
• The extent to which the employee is compensated: 
  • To remain available to perform work during the period the contact is made; or
  • For working additional hours outside of their usual hours;
• The nature of their role and level of responsibility; and  
• Their personal circumstances, including family and caring responsibilities.  

Dealing with disputes

As an employer, there may be instances where contact after work hours is required. In the event your employee refuses contact and refers to their right to disconnect but you believe the refusal was unreasonable, you may be wondering what the next steps are.   

Do not take any adverse action

It is important to not take any adverse action against an employee who has acted upon their right to disconnect. This means that employers cannot dismiss an employee or change their position as a result of the employee exercising their right to disconnect.  

How can you resolve a dispute?

Employers and employees must discuss the refusal and attempt to resolve the dispute first before any further formal steps can be taken.

If discussions do not resolve the dispute, either the employee or employer can apply to the Fair Work Commission seeking either orders to stop refusing contact or to stop taking certain actions, or to otherwise deal with the dispute.

What can you do to prepare for this change?

Review how you and your employees currently work including out of hours contact

Consider whether it is appropriate to expect your employees to connect after hours. Employers should take into account employee remuneration and responsibilities when considering communication outside of ordinary business hours. For example, it may be unreasonable to expect junior workers to engage outside of ordinary hours.

Do you have a workplace policy to cover out of hours work contact?

If you don’t have a policy, it may be time to develop one. A policy should clearly set out:

• Expectations of both employer and staff when making contact regarding change of roster arrangements. 
• Standard expectations regarding out of hours work. 
• Management of third parties, including clients and contractors, who may wish to make out of hours contact also.  
• Outline the procedures for employees: 
  • exercising their right to disconnect; and 
  • to be able to make a complaint regarding the right and how the employer will deal with the complaint.  

Communicate with your team and provide training

As with any major change, it is important to speak to your staff to ensure everyone is on the same page.

Additional staff training may also be essential, for example, managers may need training to better understand when they should or should not attempt to contact their team outside of ordinary hours.

Review staff contracts

Ensure that staff are appropriately remunerated if they are consistently required to be contact out of hours.  

Communicate with third parties

The right to disconnect also applies to communication from third parties, such as suppliers, contractors and clients. Accordingly, you should manage third parties’ expectations that they may not receive a response to communications outside of business hours.

To find out more, contact HIA's Contracts and Compliance team

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