The Right to Disconnect: How Is It Working in Practice?
Australia's right to disconnect laws have now been in force for several months, and the picture emerging from the Fair Work Commission and employer experience is becoming clearer. For many businesses, the initial concern was whether the laws would make it impossible to contact employees outside hours. For most, that concern has not materialised, but gaps in implementation are starting to surface.
This blog takes stock of where things stand, what the Fair Work Commission has indicated in early guidance, and what employers still need to address.
📌 Key takeaway: The right to disconnect does not ban after-hours contact. It gives employees the right to refuse to monitor, read, or respond to contact outside working hours, unless that refusal is unreasonable. The distinction matters enormously for how you implement it.
1. A Quick Recap: What the Law Actually Says
Under sections 333M–333P of the Fair Work Act (inserted by the Closing Loopholes No. 2 Act), employees have the right to refuse to monitor, read, or respond to contact, or attempted contact, from their employer or a third party outside their working hours, unless that refusal is unreasonable.
Factors that determine whether a refusal is unreasonable:
The reason for the contact — is it a genuine emergency or operational necessity?
The nature of the employee's role and level of responsibility
Whether the employee is compensated or paid additional amounts to be available outside hours
The method of contact — an urgent call is treated differently from a routine email
The personal circumstances of the employee, including family or carer responsibilities
Critically, the laws apply to most employees, including award-covered employees. Small businesses (fewer than 15 employees) had a delayed commencement, but that period has now passed.
2. What the Fair Work Commission Has Signalled
The Fair Work Commission has jurisdiction to deal with disputes about the right to disconnect. In early guidance, the Commission has indicated it will look at the totality of the working relationship (not just individual incidents) when assessing whether a refusal to respond was reasonable.
Key themes emerging from Commission guidance include:
Employers who clearly document expectations around after-hours contact are better placed in disputes.
Blanket policies that require employees to always be available are inconsistent with the right to disconnect.
Compensation matters. Employees paid specifically to be on-call or available outside hours have a higher bar to meet when claiming a refusal was reasonable.
The Commission expects employers to have made genuine attempts to resolve disputes internally before an application is made.
3. Where Employers Are Getting It Wrong
Based on the experience of the first months of operation, several common employer mistakes are emerging:
No policy in place
Many businesses still have not implemented a right to disconnect policy. Without a written policy, expectations around after-hours contact are ambiguous, leaving both employer and employee exposed.
Policy exists but managers haven't changed behaviour
Having a policy on paper is not enough. If managers are still routinely sending emails at 10pm and expecting responses, the policy is not working. Training managers on what the right to disconnect means in practice is essential.
Confusing 'can't contact' with 'can't respond'
The right to disconnect does not prevent employers from sending messages outside hours. It gives employees the right not to respond. Many employers have overcorrected by implementing blanket bans on after-hours messaging, which can create their own operational problems.
No clear process for genuine emergencies
Every business has genuine operational situations that require after-hours contact. The right to disconnect framework accommodates this, but employers need a clear, documented process for what constitutes an emergency and how it should be handled.
4. What Your Policy Needs to Cover
A compliant right to disconnect policy should address the following:
Definition of working hours for each role or team.
How the business will communicate outside-hours contact expectations and to whom.
What constitutes a genuine emergency or exceptional circumstance justifying contact.
The process for employees to raise concerns about after-hours contact.
How disputes will be managed internally before escalation to the Fair Work Commission.
Any roles that include on-call or availability requirements and how those are compensated.
💡 Tip: If you haven't yet updated your employment contracts and policies to address the right to disconnect, do this now. The first disputes reaching the Fair Work Commission are beginning to set precedent and businesses with clear, well-communicated policies are in a much stronger position.
5. Practical Steps for Employers Right Now
Review or implement a right to disconnect policy tailored to your business.
Brief all managers on what the right to disconnect means and how it changes expectations.
Audit your employment contracts, particularly for roles with on-call or availability requirements.
Establish a clear internal dispute resolution process before any FWC application is made.
Consider whether your after-hours contact practices genuinely reflect operational necessity or habit.
Need Help Updating Your Policies?
Element HR can review your current employment contracts and workplace policies to ensure they reflect the right to disconnect framework and help you implement practical guidelines your managers can actually follow. Contact us at info@elementhr.com.au or visit www.elementhr.com.au.