On 12 February 2024, the Australian Parliament passed the second Closing Loopholes Bill, allowing the Fair Work Act 2009 to be amended to give workers the right to disconnect outside working hours.

Employees will have the right to refuse contact or attempted contact outside their working hours from their employer or a third party, if the contact or attempted contact relates to their work.

The Fair Work Commission (FWC) will have powers to deal with disputes between employers and employees about the right to disconnect.

What is the right to disconnect?

The right to disconnect means an employee may refuse to monitor, read or respond to contact, or attempted contact, from

• an employer outside of the employee’s working hours
• a third party, if the contact or attempted contact relates to their work and is outside the employee’s working hours

However, this right only applies to a reasonable refusal.

The right to disconnect is a ‘workplace right’ under the general protections provisions of the Fair Work Act.

When is a refusal unreasonable?

The FWC will decide whether a refusal is unreasonable after considering the following matters.

1. The reason for the contact or attempted contact.

2. How the contact or attempted contact is made, and the level of disruption this causes the employee.

3. The compensation (including non-monetary compensation) the employee receives for being available to work when the contact or attempted contact is made, or for working outside their ordinary hours.

4. The nature of the employee’s role and level of responsibility.

5. The employee's circumstances (including family or caring responsibilities).

What is the impact on enterprise agreements and modern awards?

If an Enterprise Agreement contains a right-to-disconnect term more favourable than the new right to disconnect provisions, the Agreement term will continue to apply.

The right to disconnect will form part of all modern award terms.

What is the process for disputes?

When there is a dispute about the right to disconnect, the parties must first attempt to resolve it at the workplace level.

If the dispute is unresolved, either party may apply to the FWC to make an order. For the employer, this would be to stop the employee from unreasonably refusing contact. For the employee, it would be to stop the employer from making unreasonable contact or taking other actions in response to the employee's refusal.

When will the right to disconnect begin?

The right to disconnect will begin six months after the Closing Loopholes Bill receives Royal Assent. It will apply to small business employers after an additional 12 months (18 months after Royal Assent).

What is a small business?

The Fair Work Act defines a small business as one that employs fewer than 15 people. This means the total number of individuals (not full-time equivalents) including employees who are part-time, full-time and casual (if they are 'regular and systematic').