Employers burning the midnight oil and calling with after-hours requests could find their calls unanswered.
A new era began on 27 August 2024, when the majority of workers across Australia received an enforceable workplace right to refuse to read, monitor or respond to contact outside of working hours as long as it is not unreasonable to disconnect.
Employees who work for a business with 15 or more employees and who earn less than $175,000 per year, now have a codified “right to disconnect”.
This federal workplace right under the Fair Work Act 2009 (Cth) means that employers cannot take adverse action against an employee for exercising their right to disconnect. Adverse actions include dismissing an employee, demoting or discriminating against them.
For small businesses (less than 15 employees), employers have a longer lead-time before team members (under the high-income threshold) have a right to disconnect from 26 August 2025.
Here are the top 3 most common queries we are seeing from employers.
What if I have a genuine work emergency where I need my team’s help?
If you genuinely urgently need your team’s help, it would be unreasonable for your team to disconnect.
This is because your employees’ right to disconnect is conditional upon it being reasonable given (a range of factors including) their seniority, pay level, personal responsibilities and the nature of your communication (like an emergency).
If your after-hours contact is not an emergency and not reasonable, you may need to adjust your expectations and begin a conversation with your team about how to manage your business’ needs.
Ultimately, we need case law to form a firmer view on how the factors of each employee’s role, personal situation (such as caring responsibilities) and income level contribute towards the threshold of “reasonableness”. In the meantime, employers who are unsure about whether they are infringing their employees’ rights, should seek tailored legal advice.
Do I need to hold back on sending my team members emails after hours?
You can send your team members emails whenever you like.
The new “right to disconnect” is not a rule against employers, it’s a protection against employees being treated adversely for not responding to work-related matters on their personal time.
Ensure that your expectations of responsiveness are tempered by:
- Evaluating the role of the employee you are writing to, their seniority and responsibility; and
- The genuine urgency level of your communication.
In summary, before responding or behaving negatively towards an employee for failing to meet your expectations for after-hours communications, seek legal advice if you are unsure about the reasonableness of their disconnection. It may be a crucial time for you to reevaluate how to service your business’ needs.
What happens if my employee pushes back on unreasonable after-hours communication?
Your employee has the right to question their working conditions, including after-hours communication.
The first step is to have a conversation with your employee to discuss what reasonable expectations are for communication, considering their role at your organisation, their responsibilities, seniority and pay.
Note that reasonable expectations need to be balanced against their caring responsibilities and any other adjustments on account of disability, faith or other protected attributes.
Your employee has the right to seek a workplace order from the Fair Work Commission (FWC) to protect their right to disconnect. However, the FWC would require that reasonable efforts have been made to find a resolution within your organisation first. This is why a clear and fair conversation seeking to find a way forward is the right first step. If the FWC made a workplace order in favour of your employee, a civil penalty would apply if you breached that order.
In summary, if you need support in managing expectations and business needs, you would be well-positioned to seek legal counsel and pursue a fair and commercial resolution as soon as possible.
Next Steps
This article is for general information only, not legal advice tailored to your situation. Please contact Miltons Lawyers at [email protected] to begin a conversation and explore how we can support your business to thrive.