The right to disconnect is a change to the Fair Work Act as part of the new Closing Loopholes laws.
Employees of non-small businesses (a business employing 15 or more employees) now have the right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours unless that refusal is unreasonable.
This includes contact (or attempted contact) from an employer or a third party.
In relation to the education sector specifically, the reform requires schools to carefully evaluate and set reasonable expectations around out-of-hours work for teachers.
While allowing flexibility for legitimate activities like camps and sports, schools must also respect teachers' right to disconnect from work demands during personal time.
Whether a refusal is unreasonable will depend on the circumstances. The following factors must be considered:
- the reason for the contact
- the nature of the employee’s role and level of responsibility
- the employee’s personal circumstances
- how the contact is made and how disruptive it is to the employee; and
- any relevant extra pay or compensation they receive for working additional hours or remaining available to work out of hours
Other matters may also be considered.
The introduction of the ‘right to disconnect’ presents a number of unique challenges for schools.
On one hand, schools have legitimate operational needs that may require teachers to work outside of normal school hours, including extra-curricular programs, sports pursuits and the supervising of school camps.
Sector unions have argued their members should not be “permanently on call” and that they need to be able to disconnect from work demands during their personal time.
The right to disconnect is aimed at promoting better work-life balance for employees who face out-of-hours work demands.
By now, schools should have carefully evaluated what constitutes ‘reasonable’ out-of-hours expectations for their teaching staff based on factors like responsibilities, roles, and compensation.
Many independent schools clearly want the flexibility to have teachers available for camps, overseas trips, weekend sports supervision and other activities they consider integral to the optimal education experience they aim to provide.
With this in mind, a Colin Biggers & Paisley Lawyers-produced article in June advised that clear policies will be needed around reasonable notice, compensation, and alternate staffing arrangements.
In terms of teacher availability for email and messaging with parents and students, and the ability to be able to contact teachers directly out-of-hours, schools should by now have implemented strict protocols around appropriate communication times and response time expectations, in order to protect teachers’ non-work time.
In the instances where disagreements still arise between teachers and the school around what constitutes unreasonable out-of-hours contact, every effort should be made to try to resolve it internally.
If it is unable to be resolved, the Fair Work Commission (FWC) has developed a dispute resolution process which may be utilised. The FWC considers factors like urgency, compensation, roles and personal circumstances.
For employees of small businesses, the right to disconnect does not commence until August 26, 2025.
Fair Work Ombudsman Anna Booth said employers and employees needed to talk to each other about after-hours contact and set expectations suited to their specific workplace and the employee’s role.
“We encourage workplace participants to educate themselves on the right to disconnect and take a commonsense approach to applying it within their workplace,” Booth said.
“It will be ideal if employers consult with employees and their unions on the policies that apply in the workplace.
“All modern awards now include a ‘right to disconnect’ term. This means that specific rules are now in awards for how the new right applies to different industries and occupations."
As mentioned, Booth said just like most employment matters, any dispute should first be discussed and sought to be resolved at the workplace level.
The Fair Work Commission will be able to make an order, or deal with a dispute as it considers appropriate, to resolve the dispute.
The Commission can make any orders it considers appropriate, other than requiring payment of a pecuniary amount.
This could include orders to stop employees from unreasonably refusing contact, or to stop employers treating an employee adversely or requiring them to monitor, read or respond to work-related contact (when an employee’s refusal is not unreasonable).
The Fair Work Ombudsman will have an enforcement role if there is alleged non-compliance with the Commission’s orders. An employer may be subject to penalties of up to $18,780 for an individual or $93,900 for a body corporate per contravention for contravening a Commission order in relation to the right to disconnect.
The right to disconnect does not prohibit employers from contacting their employees, nor does it prevent employees from contacting one another, including across time zones.
As a workplace right, general protections in the workplace will apply – meaning that in relation to the right to disconnect, eligible employees are protected from adverse action, coercion and more.
Other changes also commence today under the Closing Loopholes reforms to the Fair Work Act, including a new definition of casual employment, and a new definition of employee and employer.
Businesses and workers are encouraged to access the FWO’s free information and seek advice where needed.
More information about the Right to Disconnect is available here.
The Department of Employment and Workplace Relations provides a fact sheet here.
The Fair Work Commission has also produced educational materials about the right to disconnect.
Employers and employees can also click here or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace.
