Right to Disconnect - Dispelling the Myths
Posted on July 29, 2025
As from 26 August 2024, the right to disconnect laws apply to employers with more than 15 employees.
Small businesses (those with less than 15 employees) have until 26 August 2025 when the laws come into effect.
The right to disconnect (RTD) laws provide that employees have the right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours, unless doing so is unreasonable. This includes contact (or attempted contact) from an employer or third party which may include clients, suppliers or even members of the public.
Contact includes many forms of communication including telephone calls, emails, texts, social media and messaging services.
Myth 1 - An employer cannot contact an employee outside working hours.
Wrong. The RTD laws do not make contact by an employer unlawful. The RTD laws give employees the right to refuse to monitor, read or respond to the contact, unless doing so is unreasonable.
To determine whether the employee’s conduct has been unreasonable you will be required to take into account all of the relevant circumstances including:
- the reason for the contact;
- how the contact was made;
- how disruptive the contact is to the employee;
- how much the employee is compensated (if any) for:
- being available to perform work outside their working hours; or
- working additional hours outside their ordinary hours of work;
- the employee’s role in the business and level of responsibility;
- the employee’s personal circumstances including their family or caring responsibilities.
Myth 2 - An employee who is on call or working overtime does not need to answer calls.
Wrong. The fact that the employee is on call or working overtime may make it unreasonable for the employee to refuse the contact. For example, where an employee is paid an on-call allowance and the contact is to give notice of or recall the employee to work, refusal to accept the contact is likely to be found to be unreasonable.
As a further example, where an employee is engaged on a casual basis and is regularly required to attend shifts on short notice, it would be unreasonable for an employee to refuse to accept contact outside of ordinary working hours.
Myth 3 - The employer cannot do anything about an employee refusing contact.
Wrong. Where an employee has been unreasonable in their refusal to accept contact, the employer can make an application to the Fair Work Commission (FWC) to deal with a “right to disconnect dispute”. Before doing so, however, the employer must attempt to informally resolve the dispute directly with the employee at the workplace level. The FWC is able to resolve disputes through conciliation, mediation or through formal arbitration. Where the FWC is satisfied that the employee has been unreasonable in refusing to accept the contact, the FWC may make an order directing the employee to stop unreasonably refusing the contact (Stop Order).
Importantly, where the FWC makes a Stop Order against an employee and the employee continues to refuse to monitor, read or respond to the employer’s contact or attempted contact, the employer is entitled to take appropriate disciplinary action against the employee. Any decision to terminate an employee for breaching the Stop Order would form the basis for a valid and fair dismissal.
Additionally, an unreasonable refusal to accept contact in such circumstances would not be seen as the exercise of a genuine “workplace right” for the purposes of the general protection provisions of the Fair Work Act 2009 (Cth).
Watch this Space
The first test case on the RTD laws is currently before the FWC. It concerns a primary school teacher who was terminated after refusing to accept contact from her employer who required her to respond to allegations of misconduct during her annual leave. With the teacher not responding to the allegations, the school found that the allegations were substantiated and to terminate her. It is yet to be determined whether such a claim will be successful, however, we will keep you updated. The teacher is seeking $730,000 in lost income and a further $50,000 for hurt and humiliation.
Please contact our workplace relations team if you require any assistance with these changes or any industrial relations advice.
