Two years on
Nearly two years after Australia’s ‘right to disconnect’ was first introduced for many employees, employers are beginning to see how the reforms may operate in practice.
While there has been significant discussion about the new workplace right since its commencement, there has been little judicial guidance on its application. However, this may soon change as the Federal Court of Australia has proceedings underway involving an adverse action claim partially relying on the right to disconnect.
The legislative framework
The right to disconnect was introduced into the Fair Work Act 2009 (Cth) in 2024 through the addition of Part 2-9, Division 6.
Section 333M gives employees a workplace right to refuse to monitor, read or respond to work-related contact outside their ordinary working hours, provided that refusal is not unreasonable.
Whether a refusal is unreasonable depends on the circumstances. Relevant considerations include:
- the reason for the contact;
- how the contact is made;
- the level of disruption;
- the extent of compensation for additional availability;
- the nature of the employee’s role and level of responsibility; and
- the employee’s personal circumstances.
The provisions have applied to employers other than small businesses since 26 August 2024, and to small business employers since 26 August 2025.
The legislation also requires modern awards to include right to disconnect terms. If a dispute arises, the parties are expected to attempt to resolve it at the workplace level before the matter is referred to the Fair Work Commission. Where appropriate, the Commission may make orders resolving the dispute, including orders where an employee’s refusal to respond to contact is found to be unreasonable.
The first court challenge
In Martin v Cairns Rudolf Steiner School Ltd (QUD148/2025), Ms Martin has commenced proceedings in the Federal Court of Australia alleging that adverse action was taken against her for exercising workplace rights, including her right to disconnect and her right to make employment-related complaints under the Fair Work Act 2009 (Cth).
It is alleged that Ms Martin received an email from her employer during the school holiday period containing a series of allegations and requiring a written response. Her solicitors replied that teachers were required to take leave during the school holidays and asserted that Ms Martin was entitled to rely on her statutory right to disconnect and respond once the school term resumed. It is alleged that the employer refused the requested extension and subsequently terminated Ms Martin’s employment.
The proceedings remain before the Court and no findings have yet been made.
Key takeaways
Although the right to disconnect has now been in force for almost two years, there has been limited judicial consideration of its scope and operation.
The Martin proceedings are likely to provide meaningful guidance on how courts will approach the interaction between an employer’s operational requirements and an employee’s statutory right to disconnect. Until then, employers should ensure that after-hours communication practices are appropriate, that managers understand the new legislative framework, and that requests for responses outside ordinary working hours are assessed in light of the statutory factors.
As this area of law continues to develop, employers should closely monitor emerging decisions and review workplace policies to ensure they remain compliant with the evolving legal landscape.
