Right to Disconnect - Operative Date 26th August 2024 (Small Business are 26th August 2025)

There has been much hype about the change introducing “the right to disconnect”.

It's important to understand that a lot of the hype is misplaced. 

The right to disconnect does not prohibit an employer or a third party from contacting an employee outside of regular work hours. 

The “Right to Disconnect” gives the employee the option to decline a request unless doing so would be unreasonable. 

What is deemed unreasonable is broad: If you are a senior manager or the request concerns a significant business matter, it is not unreasonable for the employee to be required to respond.

Overview of refusal to respond being Reasonable and Unreasonable

Refusal to act would be reasonable	Refusal to act would be unreasonable
Category of employee  A junior employee.  An employee whose compensation does not cover for the expectations to act outside of normal working hours.	Category of employee  The employee is a senior manager. The type of role would expect that contact is made outside of normal business hours i.e. a senior Business Development Manager. An employee being paid an on-call allowance.
Situation  A person at a special occasion i.e. at a wedding and responding causes significant disruption.	Situation  The business scenario is an important one for the organization i.e. it is around a new major contract or a major customer issue.

Note: Frequently, a mix of these two elements would be present. Remedies

The recourse for an employee is;

• seek to address the matter directly with their employer. 

• failing resolution, the employee may seek an order to stop the contact.

The recourse for an employer is to apply for an order specifying the employee's refusal is unreasonable.

Neither the employee nor the employer are subject to any financial penalties, which may reduce the number of people taking up the matter with the Fair Work Commission. Modern Awards & The Right to Disconnect 

The Fair Work Commission must revise Modern awards to incorporate terms around this issue.

Suggested Actions

1. Develop a policy or amend an existing one covering working hours to address this issue.

2. Educate both your People Leaders and Employees about this issue.

3. Refer to the new or updated policy in your induction materials.

4. Determine people/groupings of employees who are required to respond & address it through HR processes.

5. Review your communications protocols i.e. emails to include in the signature section “Please don’t reply to this email in non-working hours unless .......”.