The Right to Disconnect has now officially come into effect. To help ensure organisations maintain compliance with the new legislation, the government has released guidance for employers.

In a guidance paper from the Australian Public Service Commission (APSC), public sector employers have been advised to assess their risk profile, refine their policies and deliver training in line with the Right to Disconnect legislation. 

As of 26 August this year, all non-small business employers are subject to the new provisions which grant employees the enforceable right to refuse work-related contact outside of designated work hours, unless it’s deemed unreasonable to do so, such as if an employee is on call.

For small businesses (those with fewer than 15 employees), the provisions take hold in August 2025.

“It’s not like there’s a penalty for someone who sends an email out of normal working hours. It just means the employee carries the right not to respond. And if they exercise that right, they can’t be penalised for it,” Dr Gabrielle Golding, Senior Lecturer at Adelaide Law School told HRM.

Although the APSC’s guidance is geared toward public sector employers, those in the private sector would also benefit from considering these guidelines.

“[Out-of-hours-communication] has become part and parcel of the way work has been done, especially since the pandemic. So to break those habits, it’s going to take some time and reflection on how communication practices occur,” said Dr Golding.

To ensure compliance with the new laws, the APSC’s guidance paper encourages employers in the public sector to take the following proactive steps:

1. Identify your organisation’s risk profile

Employers should begin by assessing their current practices to understand the impact of the Right to Disconnect on their workplace. 

The APSC has devised a seven-point checklist for employers to assess the impact of the new laws, which encourages employers to consider the following:

1. What are the typical working hours and patterns for employees, both in the office and at home? 

Consider the impact of different time zones, rosters and individual flexible working arrangements.

2. How prevalent is out-of-hours contact, or attempted contact, in the agency? 

Assess whether there are specific roles or work areas where out-of-hours contact is more prevalent.

3. What’s the role of third parties in contacting employees outside working hours?

“That could be a client or customer of the business in which the employee is working. Essentially, it’s the exact same right for the employee to be able to disconnect or not respond to that communication outside their normal working hours,” said Dr Golding.

4. What communication methods are used in the agency? 

Consider what forms of communication (e.g. texts or emails) are generally used to reach employees outside working hours.

5. How are roles and responsibilities communicated to employees? 

Consider whether documents that communicate roles and responsibilities accurately reflect requirements for an employee to be available out of hours.

6. What arrangements are available to compensate employees for being available out of hours? 

Consider whether it’s appropriate to provide additional remuneration in instances where out-of-hours communication takes place, such as on-call allowances. 

7. Are any specific personnel required to be contactable by law?

For instance, this might include on-call medical professionals or emergency response coordinators.

After determining the risk profile based on this checklist, employers are advised to consider any existing provisions in their enterprise agreements related to the Right to Disconnect, and how they interact with the new legislative rights.

Want to learn more about successfully navigating the Right to Disconnect? Equip yourself with best-practice frameworks and gain practical strategies to address any potential challenges at AHRI’s Navigating the Right to Disconnect webinar on 12 September.

2. Update employment documents to clarify expectations

Based on the outcome of the risk analysis, an important next step is to review all documentation related to roles and responsibilities to ensure they comply with the new laws and accurately reflect the organisation’s reasonable expectations for out-of-hours contact.

“Update or implement policies with practical examples of reasonable after-hours contact – [for example], last-minute work location changes or urgent work issues which specifically relate to the employer – and establish a process for addressing concerns about out-of-hours contact,” says Molly Shanahan, Senior Associate at Snow Legal. 

“Employment contracts could [also] be revised to set expectations for reasonable contact, adjust salary set-off clauses, or [specify] additional compensation included for employee availability to be contacted after hours.”

The APSC also advises employers to develop organisation-specific policies and guidance for all employees on what the Right to Disconnect looks like and how complaints or disputes are handled. 

“Ensure the visibility and practicality of a grievance resolution policy. A good general rule is that it should be short  – one page – and easily located by an affected employee within 30 seconds,” says Will Snow, Director at Snow Legal.

Dr Golding also advises employers to consider the Right to Disconnect in relation to the organisation’s flexible working policy.

“One doesn’t cancel out the other; the two need to operate alongside one another,” she said. 

“[For example], for us here at the law school, we’ve got a Right to Disconnect guideline that we work by and we’ve got a lot of people who work flexibly. We just have agreed-on communication hours, so we will email between ourselves as staff, and with our students, between the hours of 8:30am and 5:30pm on weekdays, excluding public holidays, and that has worked fine.”

3. Train managers and HR

HR practitioners and middle managers play a critical role as the custodians of the Right to Disconnect, both in delivering essential information to employees and fielding any disputes around the new entitlements. 

Consequently, providing timely and thorough training to HR and managers is employers’ most important line of defense against any potential legal risks. 

“[Training should include] what the new Right to Disconnect is – that it’s about contact and communication, not about performance of work after hours and whether that can be required,” says Shanahan. 

“[It should also cover] the importance of work-life balance, health and safety considerations arising from out-of-hours contact, and that leaders need to set an example by limiting out-of-hours contact. [For example], does that email need to be sent now, or can you use a ‘schedule send’ function?”

The APSC also stresses that managers should understand that employees cannot and should not be subject to any adverse action for exercising, or proposing to exercise, their Right to Disconnect, and should be fully aware of the correct process for addressing disputes.

“[Out-of-hours-communication] has become part and parcel of the way work has been done, especially since the pandemic. So to break those habits, it’s going to take some time and reflection on how communication practices occur.” – Dr Gabrielle Golding, Senior Lecturer at Adelaide Law School

Examples of the Right to Disconnect in action

To help employers understand the practical application of the Right to Disconnect, the APSC’s guidance paper provides a number of example scenarios illustrating various situations where the new provisions would come into play. 

These examples can serve as a guide for navigating the balance of respecting employee boundaries while maintaining operational efficiency.

In one example, Jing, a senior officer, contacts Max, a junior employee, late at night to try and find a non-urgent document in the company system. Jing sends a number of texts to Max’s personal mobile, but Max chooses not to respond, since his role does not require him to be available after hours, and he is not compensated for this availability. 

In this case, Max’s decision not to respond is considered reasonable, taking into account the lack of urgency and Max’s role-specific expectations.

In a contrasting scenario, Alena, the General Counsel at a legal agency, contacts Jharna, a senior lawyer responsible for leading a small taskforce for six weeks to coordinate the agency’s response to an important inquiry.

Despite receiving a higher duties allowance that includes some out-of-hours responsibilities, and her initial job description specifying the requirement for some out-of-hours contact, Jharna declines the calls while attending a gym class and only reads the message hours later. Given the urgency and her role’s expectations, Jharna’s refusal to respond may be seen as unreasonable.

In both these scenarios, as with any other dispute over the Right to Disconnect, clear and timely communication with the employee in question will allow the matter to be negotiated and resolved without the need for Fair Work intervention.

“Allow dialogue with any affected employee to be open, so both parties can get a better understanding of the employee’s situation, and the employer’s requirements,” says Snow.

By understanding what a reasonable request for out-of-hours communication looks like and taking the steps outlined above, HR can not only comply with the new Right to Disconnect legislation but also contribute to a healthier work-life balance for their people.

A version of this article was first published on 31 July 2024.

Want to take your employment law skills to the next level? AHRI’s Advanced HR Law short course is grounded in practical, expert insights to help you navigate Australia’s complex employment law landscape.