Sheltons Group Legal – an Australian law firm based in London

Understand Australia’s new Right to Disconnect Law

Australian employees will now have the right to refuse, monitor, read or respond to contact (or attempted contact) outside working hours, unless it would be unreasonable for them to do so.  

These changes came into effect from 26 August 2024 for non-small business employers and will come into effect for small business employers from 26 August 2025.  

  • What does the right to disconnect involve?

It is important to note that these changes do not result in a blanket ban on contacting employees after work hours. Nor do these changes actually prohibit employers from contacting employees, rather they simply allow an employee to ignore such contact without suffering any negative repercussions to their employment.  

Employees now also have the ability to seek an order from the Fair Work Commission (FWC) which prevents an employer from continually contacting the employee outside work hours. Employers then risk being fined for contravening such orders.  

However, contact made to employees after ordinary hours of work cannot be ignored if ignoring such contact would be considered ‘unreasonable’. There is no strict definition of what would be considered ‘unreasonable’, but the following (non-exhaustive) list of matters will be considered:  

  • the reason for the contact or attempted contact  
  • how the contact is made and the level of disruption the contact caused the employee
  • the extent to which the employee is compensated to remain available to be contacted or to perform work outside ordinary work hours
  • the nature and level (or seniority) of the employee’s role, and 
  • the employee’s personal circumstances (family or caring responsibilities).  

Accordingly, whether contact outside ordinary work hours would be considered unreasonable will vary between different roles and industries.  

For example, where it may be considered unreasonable to contact a low-level employee on minimum wage, that same type of contact may be considered reasonable if made to a highly compensated employee in senior management. 

  • What do these changes mean for your business? 

Employers will need to review and potentially reconsider their operations and how they engage with their workforce.  

In particular, businesses with international workforces will need to reconsider their expectations of Australian employees in terms of their availability outside of Australian business hours.  

In order to mitigate the risk of employees seeking orders from the FWC, and subsequent fines should such orders be contravened, businesses may consider the following options:   

  • Reviewing employment contracts to clarify position descriptions and ensure that it is clear what out of hours contact is expected with the role. 
  • Ensuring that employees are compensated for out of hours contact which could be provided as part of their salary, overtime pay and/or time off in lieu.  
  • Implementing an out of hours contact policy setting out clear expectations as to when and why employees may be contacted out of hours (e.g., the policy could list specific emergency situations in which employees will be required to respond to contact).  
  • Workplace policies should also set out a complaints process or a dispute resolution process to encourage employees to resolve matters internally rather than seeking orders from the FWC.  
  • Implement training programs to ensure all managers are aware of their obligations.  

It is important that all employees (including managers) within your business are aware of, and understand, the rights and obligations under Australia’s new right to disconnect laws. 

If you require assistance or advice on these new laws, then please do not hesitate to contact us.  

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Courtney Gleeson
Lawyer
Sheltons Group Legal (London and Sydney)
C.Gleeson@SheltonsGroup.com

Sheltons Group Legal – legal services from Europe

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