The Right to Disconnect

Don’t believe that work-life balance impacts your business? It could be the reason you’re losing out on top talent.

In January 2024, A Randstad survey reported that 57% of workers surveyed would reject a job offer if it would “negatively affect their work-life balance.” Today’s employees are clearly prioritising their mental wellbeing.

Legislators have reflected this public sentiment with amendments to the Fair Work Act 2009. Introduced in two tiers, the right to disconnect law in Australia first took effect on 26 August 2024. Its second stage will apply 12 months later for small business employers.

This article will address what this law means for a small or larger business employer. It will bring you up to date with everything you need to know about this legislation and its implications in your workplace.

What is the right to disconnect law?

The right to disconnect (Australia) section 32 of the updated Fair Work Act is a regulation designed to bring about real change. It grants eligible employees a ‘right to disconnect’ from contact with their employer outside their agreed working hours.

It was introduced as part of Australia’s series of Closing Loopholes Acts alongside changes like new family and domestic violence protections and workplace delegate rights.

The consequences of the law mean that while you can still contact employees when they’re not working, the employees will have the right to refuse to monitor, read, or respond.

Examples include expecting employees to reply to emails or answer phone calls outside their working hours. This amendment covers contact from you (the employer) and third parties such as clients. However, there are exceptions should you need to make contact.

Based on certain factors, your employees’ refusal to be contactable or respond could be considered ‘unreasonable’.

These factors include:

• The reason for the contact
• The nature of your employee’s role and level of responsibility
• The employee’s personal circumstances (including family or caring responsibilities)
• Whether your employee is compensated for being available when contact is made/attempted or for working extra hours

It’s worth noting that this list doesn’t cover every factor that will allow you to contact employees outside their regular hours. Further exemptions to the ‘right to disconnect’ may include your need to contact employees regarding rostering, shifts, and emergencies.

How does the right to disconnect relate to Australian labour laws?

The right to disconnect law of Australia is a workplace right for many of your employees.

The Fair Work Amendment (Right to Disconnect) Bill 2023 adds it to the National Employment Standards and it’s part of Australia’s general protection laws.

It took effect for non-small business employers from 26 August 2024. Small business employers (with 14 or fewer employees) must respect employees’ right to disconnect from 26 August 2025.

All modern awards also had to include a ‘right to disconnect term’ by the earlier deadline (2024). So, different industries–and the occupations within them–have the right to disconnect defined.

Why the right to disconnect is important

Despite any inconvenience this amendment causes you or your HR team, the right to disconnect has Australia-wide benefits for businesses.

Not only does it help you attract leading talent given the appeal of a better work-life balance, but the right to disconnect brings various advantages that could help you build a more productive, healthy workplace and gain the competitive edge this gives you.

Improved mental health and wellbeing

Your employees’ mental health and wellbeing can be positively influenced by their right to disconnect.

It’s thought that the Australian economy loses between $12.2 and $22.5 billion per year due to poor mental health. This includes sick pay and meeting the recruitment needs of leave. However, the same source reveals that every dollar invested in supporting employee mental health delivers an ROI of at least $2.30.

One easy way employees may boost their mental health could be by pursuing hobbies or sports as part of their downtime. Often, these interests build skills that can be valuable when transferred to their everyday working lives. Participating in sports and hobbies through clear work-life boundaries can also help manage stress in the workforce.

The right to disconnect and enjoy oneself can actually help the long-term growth of your business and improve outcomes across the board.

Higher job satisfaction levels

The University of Queensland’s Associate Professor Stacey Parker believes that, “When someone feels they have work-life balance, they tend to perform better at work and have greater life satisfaction.”

Dr Parker also notes that the introduction of the right to disconnect in Australia is a “strong step forward.”

This relates to the potential adverse health consequences of having a poor work-life balance. She adds, “If people cannot disconnect completely from work, serious, long-term chronic health problems can develop.” By promoting a better work-life balance among employees, you’ll lower the costs of employee illness and recruitment.

The right to disconnect can be a steppingstone for better physical and mental health outcomes for workers across Australia.

The right to disconnect’s impact on workplace culture

The majority of employees want to support your business and work hard during their assigned working hours. But often, they’ll have personal caring responsibilities or children to look after alongside their working life. Or they just want to spend time outside of their working hours with their loved ones and recharging.

When contacted in their free time, employees can feel frustrated and anxious. For example, if an employer calls their employee to request that they send an email. At worst, employees could resign if they feel they have a poor work-life balance with their current company.

Following the right to disconnect (Australia) regulations can help reduce employee turnover, especially among parents and family carers. Previously unsatisfied or ‘burned out’ employees are more likely to be loyal to your company. And they’ll be able to apply their best potential at work knowing that their free time is theirs.

The right to disconnect in Australia is a win-win for employers and employees alike.

What are the legal requirements for business owners?

The right to disconnect section 32 amendment of the Fair Work Act 2009 has several key provisions. It mainly expects Australian employers not to insist that their employees monitor, read, or respond to communications sent outside of their usual working hours as part of the wide-ranging Closing Loopholes Acts. Employers are expected to discuss and find a remedy within their business.

However, employers who fail to resolve related disputes with their employees can consult the Fair Work Commission. This national tribunal will examine the situation and either issue an order or consider alternative means of resolving the problem.

It was first thought that employers who disrespect their employees’ right to disconnect would face fines. However, as reported in February 2024, the Albanese Government announced changes to their right to disconnect law. This stops employers from being given a criminal record–or penalties–for contacting employees during non-working hours.

Potential challenges and solutions

One potential downfall of this law is for industries such as healthcare, emergency services, and trades. These employees usually need to be ‘on-call,’ leading employers to wonder whether the right to disconnect still applies.

However, section 64A of the Fair Work Act offers a practical exemption. It declares that employees don’t need to monitor, read, or respond to any kind of work-related communication outside of working hours, “unless the employee is in receipt of an availability allowance for the period during which the communication is made.”

Section 64A (3) defines an ‘availability allowance’ as, “An allowance for being rostered, or otherwise directed by an employer, to remain available to perform work during the period." This could be the solution to helping you meet the challenges of your business. It can establish a legal basis for contacting employees away from their time at work. Crucially, this would require the employee to agree to an ‘availability allowance’.

Equally, you may face resistance from your employees when your business begins to implement the right to disconnect policy. Your employees may worry they’ll be overlooked for promotion or that they’ll face tension or negative consequences for exercising their rights.

This can cause resistance and undermine this regulation’s intention. A best practice to overcome this would be to reassure employees that this won’t happen by training their managers to uphold these rights, updating your policies to reflect this new right, and leading by example.

Practical implementation of the right to disconnect for employers

You can view this change as an opportunity. The Department of Employment and Workplace Relations (DEWR) Right to Disconnect Factsheet says, “The employee right to disconnect will encourage employers and employees to talk about contact out of hours and set expectations that suit the workplace and the particular role.”

Your employees should be made aware of this amendment to the Fair Work Act 2009. Talk to them as a group and individually. They should understand their rights and at what times they can ‘disconnect’ from work. These are especially valuable in light of the fact that new technologies and flexible working have blurred this work-life balance for many employees.

Get help implementing the right to disconnect from BrightHR

Whether you’re a non-small or a small business employer, the right to disconnect law affects your ‘out of hours’ communications with employees.

There are exceptions for the personal circumstances, industry, and nature of work your employees are engaged in. You can also reasonably contact them to arrange rosters or in emergencies. As we’ve seen, the right to disconnect is also a great way to create a better work-life balance and more productive employees. To save admin time, you can update your policies and handbooks with HR documents and templates, and make sure your employees are getting their well-earned downtime with a staff time-tracking app.

BrightHR software and our 24/7 employment relations advice line can help you maintain your productivity, staffing levels and everyday commercial operations while implementing the right to disconnect in Australia.

Have more questions about how the updates to the Fair Work Act applies to your business? Download our Right to Disconnect FAQs for more guidance.