Q&A: Right to disconnect for national system employees

The right to disconnect is the right to refuse to monitor, read or respond to contact or attempted contact from an employer outside work hours unless refusal would be unreasonable.

What this means in most circumstances is that you don’t need to respond if your boss is calling, emailing or texting you after work. However, if they have a good reason for contacting you, and it would be unreasonable for you not to respond, then you still need to respond.

The right can also extend to third parties if the contact or attempted contact relates to work and is outside working hours. For example, you might have clients that you work with who are contacting you outside of work.

National system employees will have a right to disconnect:

• from 26 August 2024 if their employer has 15 or more employees; or
• from 26 August 2025 if employed by a small business (less than 15 employees).

All modern awards will contain a right to disconnect from 26 August 2024, although note that the same delay for small business employees will apply.

Some enterprise agreements in the national system also already have a right to disconnect.

If you are unsure which system you are in, please see our publication: “Q&A: State or national for WA employees”.

No – the right to disconnect is about the right to not respond to employer contact. It’s not unlawful for your employer to contact you.

Of course, if your employer is constantly contacting you and you aren’t responding, it’s likely they will raise this at work, take some sort of disciplinary action or punish you in some other way.

If you are treated badly for not responding, your employer may be breaching other laws and you may have a legal claim. See below for more information and see our publication Q&A: Protected complaints and actions for WA workers.

You have the right to refuse contact generally, but in some circumstances a refusal to respond might be considered “unreasonable”. So you can’t always refuse contact.

Sometimes this might be obvious. If there has been a natural disaster and its unsafe to attend the workplace – it would be reasonable for your employer to contact you to co-ordinate safe working duties.

If you are a highly paid lawyer and you are in the middle of an important trial – it may be reasonable for your employer to be discussing progress and strategy after regular work hours. Basically, the law considers that a higher wage compensates you for working additional hours, and you accept that wage on the understanding that you will sometimes be working outside regular work hours.

In contrast, if you are working a minimum wage casual job at a fast food restaurant and your employer is calling you after hours to discuss the work day – it would likely be reasonable for you not to respond. If they were sending you the roster and asking your availability – it would likely be unreasonable for you not to respond, because the communication is for your benefit, and necessary to give you work.

Every circumstance will be different, but the law gives some guidance as to factors that will be considered when determining whether a refusal to respond is reasonable or unreasonable:

• the reason for the contact;
• whether you are compensated for being available when contact is made or attempted, or when working additional hours outside your ordinary hours of work;
• the nature of your role and your level of responsibility; and
• your personal circumstances including family or caring responsibilities.

The refusal may also be unreasonable if State or Commonwealth laws require the employee to be contacted.

The specifics of your right to disconnect may also depend on your award or your industrial agreement and you should review these before refusing contact.

You can’t contract below the law. So even if your contract says that you need to work additional hours or respond to your employer, you can still refuse if the refusal isn’t unreasonable.

However, keep in mind that a contract is an agreement between you and our employer. So if you have signed the contract, you have agreed that you may need to work additional hours or agreed that you will communicate outside work hours. Because of this agreement, it’s more likely that it will be considered “unreasonable” for you not to respond.

A contractual term doesn’t mean that an employer can expect you to always respond. It’s one factor which may be taken into consideration, but the other factors will still be taken in to account when determining whether a refusal to respond is unreasonable or not.  For example, if you have this type of clause in your contract but you are not paid a salary to compensate for the additional work, then it may still be reasonable for you to refuse to respond to contact.

Note that if your contract provides a requirement to do additional work outside regular hours but you are only paid minimum wage or an award minimum, your employer may be breaching other laws and you may wish to seek legal advice.

It’s always very important to read a contract before signing it, and to seek help if you don’t understand all the terms.

You should attempt to resolve right to disconnect disputes with your employer at a workplace level first. You can check your award or agreement to see if it has a dispute resolution process you can follow.

National system employees who cannot resolve their right to disconnect dispute at the workplace level can apply to the Fair Work Commission to resolve the dispute. Employees can ask the Fair Work Commission try and resolve the dispute – for example by holding a conference – and/or ask the Fair Work Commission to make orders to stop:

• an employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact, or
• an employer from:
  • continuing to require an employee to monitor, read or respond to contact, even though the employee refuses, or
  • taking action against an employee because they believe the employee’s refusal is unreasonable.

If both parties agree, the Fair Work Commission may arbitrate the dispute. If arbitrating the dispute, the Fair Work Commission may be able to make any order it thinks is appropriate.

The law says that you can’t be punished for exercising a workplace right, including the right to disconnect. So if you are fired, or given a demotion, or just treated badly in the workplace because you reasonably refused contact outside of work, you might have a legal claim.

You might also have a legal claim if you are treated badly for making a complaint or asking a question – for example if you ask your employer whether you are allowed to refuse contact outside work, and you are punished just for asking this question.

For more information about workplace rights and protected complaints and actions in the state and national system, please see our publication: “Q&A: Protected complaints and actions for WA workers”.

In the national system the right to disconnect is a workplace right protected by the general protections in the Fair Work Act. This means generally it is unlawful for national system employers to coerce an employee to exercise or not exercise the right to disconnect.

However, awards or agreement may also set out exceptions to the right to disconnect:

• where employees can still be required to monitor, read or respond to contact or attempted contact outside work hours, for example some employees who are paid a stand-by allowance to be on call; or
• where employers are still allowed to contact or attempt to contact employees outside working hours, for example, emergency roster changes or recalling employees to work.

The details of the right to disconnect may depend on your award or your industrial agreement and you should review these before refusing contact.