The Right to Disconnect in Australian Employment Law

4 September 2025 in Business Law | 4 min read | skip to FAQs

This article examines the recent Fair Work Amendment Bill enacting the right to disconnect in Australian employment law.

As workplace technology continues to advance and remote work becomes increasingly common, the boundary between work time and personal time has become less clear for some employees. As a result, Australia has recently amended the Fair Work Act 2009 (Cth) to include an enforceable right to disconnect, ensuring employees can reclaim their personal time.

Global Trends and Australian Legislative Response

The amendment to the Fair Work Act 2009 (Cth) reflects a growing global recognition of the importance of work-life balance. France pioneered the right to disconnect in early 2017, requiring employers to negotiate agreements with unions to ensure employees could disconnect from work-related technology after working hours. Since then, similar legislation has been adopted in countries including Belgium, Ireland, Italy, Portugal, and Spain. In Australia, this movement gained momentum with the inclusion of a right-to-disconnect clause in the Victorian police enterprise bargaining agreement. The latest amendment to the Fair Work Act 2009 (Cth) follows this trend, reinforcing the importance of clear boundaries between work and personal life.

Fair Work Amendment (Right to Disconnect) Bill 2023

The recent amendment to the Fair Work Act 2009 (Cth) aims to prevent employers from contacting employees outside of work hours unless it is reasonable to do so. This amendment adds the right to disconnect outside of working hours to the National Employment Standards, ensuring that employees are not obliged to monitor, read, or respond to all kinds of work-related communications during their personal time.

Moreover, this amendment under the Fair Work Amendment (Right to Disconnect) Bill 2023 carries important human rights implications. It aligns with Article 7 of the International Covenant on Economic, Social, and Cultural Rights, which advocates for reasonable limitations on working hours.

Furthermore, the bill is compatible with the human rights and freedoms recognised in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Protections Under the Fair Work Act

In response to the Fair Work Amendment (Right to Disconnect) Bill 2023, the new legislation granting employees the right to disconnect officially took effect on 26 August 2024 for larger businesses. This right has been extended to employees in small businesses (with fewer than 15 employees) from 26 August 2025.

The right to disconnect is now recognised as a workplace right under general protection laws, which are safeguarded by the Fair Work Act 2009 (Cth). Under Division 3 of the Fair Work Act 2009 (Cth), section 340 protects employees from adverse actions by employers when they exercise their workplace rights, including the right to disconnect.

Implications for Awards and Agreements

Following this amendment, all modern awards must now include “right to disconnect” terms, ensuring the new rights are applied across various occupations and industries. Additionally, enterprise or other registered agreements may also incorporate right-to-disconnect provisions.

Reasonableness in Disconnecting

While the right to disconnect is enforceable, exceptions apply. In certain circumstances, such as emergencies, genuine welfare matters, or if the employee receives an availability allowance, it may be unreasonable for an employee to refuse contact.

As emphasised by Mr Bandt during the secondary reading speech, the principle behind this bill is straightforward:

“When you clock off, you should have the right to log off. You shouldn’t have to answer phone calls, emails or texts from your employer outside of working hours unless you’re getting paid for it.”

The Fair Work Ombudsman outlines several factors to consider when determining whether an employee’s refusal to connect is unreasonable:

1. The reason for the contact.
2. The method and disruptiveness of the contact.
3. Compensation or additional pay for being available or working outside of ordinary hours.
4. The employee’s role and level of responsibility.
5. The employee’s personal circumstances, including family or caring responsibilities.

Managing Out of Hours Contact

Despite the new rights, it is crucial for employers and employees to maintain open communication about expectations regarding out-of-hours contact.

Here are some best practices for managing these situations:

1. Setting Expectations: Clearly define when employees are expected to respond to communications outside of regular working hours and when they are free to disconnect. Further, employers should discuss and establish expectations for client communication after hours.

2. Compensation for Out-of-Hours Contact: Employers must ensure that employees are fairly compensated for any extra hours worked due to out-of-hours contact. This compensation should align with the relevant award, enterprise agreement, or employment contract, particularly concerning the right to disconnect.

3. Formalising Out-of-Hours Arrangements: Supervisors and managers should take the lead in formalising any out-of-hours contact arrangements. These arrangements should be documented in writing and communicated to senior staff. Further, regular reviews of these arrangements are essential, especially when an employee’s scope of work, hours, or responsibilities change.

4. Reviewing Internal Policies: Employers should review and update internal policies and procedures to incorporate the right to disconnect, ensuring they align with the expectations regarding out-of-hours contact.

This proactive approach above should ideally be established before any out-of-hours contact occurs. Ultimately, both employers and employees share the responsibility for ensuring clear and effective communication regarding work expectations.

Conclusion

Australia’s amendment to the Fair Work Act 2009 (Cth) marks a significant change in work-life balance for employees. Employers will need to contact employees out of hours for various reasons and employers should take the steps set out above to ensure that out of hours contact complies with the amended Fair Work Act 2009 (Cth) and the right to disconnect.

How can BSM Sydney Lawyers assist you?

At Brander Smith McKnight Sydney Lawyer, our experienced business lawyers can assist with any inquiries or concerns regarding employment matters such as amendments to the Fair Work Act. Our senior business lawyers offer a free 20 minute consultation to discuss your individual matter.

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