The right to disconnect provided under the Fair Work Act 2009 (Cth) (FW Act) is set to extend to employees of small business employers from 26 August 2025.

This presents a timely opportunity to recap on the right to disconnect and related developments since the right was enshrined in legislation and first introduced into Australian workplaces 12 months ago.

What is the right to disconnect?

The right to disconnect was part of a suite of measures introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Closing the Loopholes legislation).

The right to disconnect came into operation for employers other than small business employers on 26 August 2024. Small business employers will follow suit on 26 August 2025.

The right to disconnect is set out at section 333M of the FW Act and provides that an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.

The right to disconnect also extends to contact or attempts to contact from a third party in connection with their work (FW Act, section 333M(2)).

The Fair Work Commission is yet to provide formal guidelines or jurisprudence on the limits on when an employee may refuse to monitor, read or respond to contact or attempts to contact them outside their working hours. However, section 333M(3) of the FW Act provides that the following must be taken into account in determining whether a refusal is unreasonable:

• The reason for the contact or attempted contact by the employer;
• How the contact or attempted contact was made and the level of disruption caused to the employee;
• The extent to which the employee is compensated, both financially and otherwise:
  • to remain available to perform work during the period in which the contact or attempted contact was made; or
  • for working additional hours outside of the employee’s ordinary hours;
• The nature of the employee’s role and level of responsibility; and
• The employee’s personal circumstances, including the reasons for their refusal.

Right to disconnect modern award term

Consistent with the Closing the Loopholes legislation, in March 2024 the Fair Work Commission commenced a process of varying all modern awards to include provisions for a right to disconnect term by 26 August 2024 (Modern Award Term).

The Modern Award Term applied to employers other than small businesses employers from 26 August 2024 and will apply to small business employers from 26 August 2025.

How are disputes resolved?

The parties to a dispute related to the right to disconnect must in the first instance, attempt to resolve the dispute at the workplace level, after which they can be referred to the Fair Work Commission (FW Act, section 333N).

The Fair Work Commission has broad powers, as to how the disputes are resolved including to issue orders for example to stop an employee from refusing contact or to prevent an employer from taking disciplinary action, to conciliate the matter, or to proceed with arbitration by consent (FW Act, sections 333P and 333V).

The courts also have the power to resolve disputes about the right to disconnect because it is a right protected under the general protections provisions in Part 3-1 of the FW Act.

The provisions of the FW Act relating to the right to disconnect are currently being tested for the first time in Federal Court proceedings brought by a teacher in Queensland (Martin v Cairns Rudolf Steiner School Ltd (QUD148/2025)).

As part of a multi-faceted general protections application, the teacher alleges that the decision to terminate her employment was in part based on her refusal to respond to communications relating to a misconduct process during the school holidays.

The teacher is seeking compensation in the vicinity of $800,000.

The matter was listed for mediation on 11 August 2025.

What impact has the right to disconnect had on Australian workplaces?

It is unclear to what extent employers to whom the right to disconnect applies have implemented frameworks to address its challenges, or how effective those frameworks are. However, it appears that the right to disconnect has had some positive impacts for employers and employees since it was introduced in August 2024. For example, the AHRI Quarterly Australian Work Outlook – June 2025 reported:

• 29% of surveyed employers found the introduction of the right to disconnect to have led to changes of policy or practice in their organisation;
• 27% of surveyed employers said the right to disconnect had positively impacted their organisation;
• 58% of surveyed employers noticed increased productivity and engagement in their organisation following the introduction of the right to disconnect; and
• improvements in employee wellbeing in connection with the introduction of the right to disconnect, with 37% of employers surveyed reporting a perceived reduction in stress, and 39% reporting improved work-life balance for employees.

What can employers do to comply with the right to disconnect?

While we continue to wait for further guidance from the courts and Fair Work Commission on the operation of the right to disconnect, there are several measures that employers can take to ensure that they are applying the right to disconnect consistent with their obligations, and that any disputes are resolved seamlessly.

These measures include:

• reviewing workplace policies to:
  • ensure work health and safety measures are sufficient;
  • delineate when out of hours contact is considered reasonable for different roles; and
  • include dispute resolution procedures for addressing right to disconnect disputes;
• reviewing the right to disconnect terms in applicable Enterprise Agreement and Awards and seeking further legal advice if necessary;
• engaging in discussions with employees about:
  • expectations and when out of hours contact will be required, so that managers and employees can identify reasonable ways to ensure service delivery while minimising the disruption to employee’s personal lives;
  • how contact will be made outside of work hours in consultation with employees;
  • whether existing frameworks (such as handovers or an ‘on call roster’) are required;
  • how third-party contact will be managed; and
  • the personal circumstances of employees which make it unreasonable for an employee to monitor, read and respond to contact out of hours (such as caring responsibilities);
• reviewing contracts of employment, and if necessary, making amendments to ensure that the right to disconnect is afforded and if appropriate remuneration (such as additional leave, TOIL, or overtime pay) compensates employees for the need to monitor, read and respond to contact outside of standard hours.

This article was written by Alison Spivey, Partner, and Georgia Driels, Senior Associate.