Quick Summary: The right to disconnect allows Australian employees to refuse work contact outside ordinary hours without penalty. Since August 2025, disputes are escalating as employers struggle with enforcement. The FWC expects evidence of a genuine workplace agreement before disputes can proceed. Here’s what employers need to know to avoid or win claims.
What is the Right to Disconnect?
The right to disconnect is a statutory obligation under the Fair Work Act 2009. It means employees can refuse or ignore work calls, emails, and messages outside their ordinary hours of work — without your employer being able to discipline them, reduce pay, or take adverse action.
It started 1 August 2025 and applies to all employers, all states, all industries.
This is not about preventing employees from working extra hours. It’s about employees being free from the expectation or requirement to respond to work contact outside ordinary hours.
Key point for employers: You can’t fire, demote, reduce hours, or negatively assess an employee for exercising the right to disconnect. That’s considered adverse action under the Fair Work Act.
When Do Right to Disconnect Disputes Arise?
Disputes most commonly happen when:
- Employer cultures clash with the law — businesses where “always on” is expected (tech, finance, operations management)
- Unclear policies — no documented policy about after-hours expectations
- Management overreach — supervisors sending urgent messages at 11 PM and expecting responses
- Salaried/flexible roles — confusion about whether exempt staff must respond after hours
- Remote or hybrid teams — blurred lines between work and home
The FWC has already seen disputes on these facts. Employees claim they were penalised for not responding to after-hours messages; employers argue it was performance management, not adverse action.
How to Respond to a Right to Disconnect Application
If an employee files a Form F92 (right to disconnect dispute) with the FWC, here’s what happens:
Step 1: FWC Notification (Week 1)
You’ll receive notice from the FWC. You have 14 days to file a Response to the Dispute (Form F92A). This is mandatory.
Step 2: Conciliation (Week 2–4)
The FWC assigns an independent conciliator. Both parties attend a conciliation session (usually online). The goal is to settle without a hearing. Many employers and employees resolve disputes here.
Step 3: If No Settlement — Hearing (Week 4–8)
The FWC schedules a formal hearing before a member. You’ll present evidence, cross-examine the employee, and make final submissions. The member issues a decision within days.
What evidence the FWC expects:
- Your written right-to-disconnect policy
- Training records showing employees were informed
- Emails/messages showing what contact you expected
- Performance reviews, discipline records
- Testimony from managers about ordinary hours and after-hours expectations
- Any documented agreement with the employee about flexibility
The FWC Process: Timeline & Costs
FWC Application Fee (as of 1 July 2026): $92.70 (employee pays, not you)
Timeline:
- Day 1: Application filed
- Days 2–14: You respond
- Weeks 2–4: Conciliation
- Weeks 4–8: Hearing (if needed)
- Total: 6–10 weeks to resolution
Your costs:
- Legal advice (optional): $2,000–$5,000 depending on complexity
- Witness preparation time
- Management time for hearing attendance
- No “loser pays” rule — each party bears own costs (unless the FWC orders otherwise, which is rare)
How to Avoid Right to Disconnect Disputes
1. Create a written policy (non-negotiable)
Your policy should clearly state:
- What are ordinary hours of work for each role?
- What after-hours contact is expected (and it should be: none, unless emergency)?
- How you define “emergency” (system failure? customer emergency? routine query? Be specific)
- That employees can refuse non-emergency after-hours contact without penalty
- That flexibility is encouraged with consent, but not mandated
2. Train managers ruthlessly
Managers are your biggest exposure. They send the 8 PM emails, expect Sunday responses, and don’t understand that’s now a breach. Training should include:
- What the right to disconnect IS (and isn’t)
- Examples of compliant vs. non-compliant contact
- How to escalate genuine emergencies
- That “urgent” is not the same as “emergency”
3. Document flexibility agreements
If a role is genuinely flexible (e.g., director, on-call engineer), document it in writing and have the employee sign. The FWC expects a genuine, informed agreement — not a unilateral expectation.
4. Exclude genuine emergencies
The law allows employers to contact employees outside ordinary hours for genuine emergencies — but only genuinely. Define it narrowly (system down, security incident, customer safety). Vague definitions invite disputes.
5. Use scheduling tools
If you use Slack, Teams, email, or project tools, schedule messages to arrive during ordinary hours. This prevents the appearance of after-hours expectations.
Common Mistakes Employers Make
- No written policy — Most common. You lose credibility at the FWC if you can’t show what you told employees.
- Conflating “flexibility” with “on call” — Flexible hours and after-hours availability are different. Document which applies to which roles.
- Emergency overuse — Classifying routine queries as “emergencies.” The FWC sees through this.
- Manager behaviour vs. policy — Your policy says “no after-hours contact” but managers send nightly emails. The FWC believes the behaviour, not the policy.
- No training evidence — If you can’t show employees were trained on the policy, the FWC assumes they weren’t.
- Performance management confusion — Penalising “poor communication” because an employee didn’t respond to an 10 PM email. This looks like adverse action.
FAQs: Right to Disconnect & Employer Disputes
Q1: What exactly is “right to disconnect”?
A: The statutory right of an employee to refuse or ignore work calls, emails, and messages outside their ordinary hours of work, without being disciplined or penalised.
Q2: When does an employee have the right to disconnect?
A: Outside their ordinary hours of work. For a 9-to-5 employee, that’s after 5 PM and before 9 AM, plus weekends and public holidays (unless there’s a genuine flexibility or on-call agreement).
Q3: Can I expect my employees to respond to emails after hours?
A: No — unless you have a documented, written agreement in place that specifically requires it, AND the employee signed it. Even then, only for genuine emergencies.
Q4: What should be in my right to disconnect policy?
A: (1) Definition of ordinary hours, (2) after-hours contact expectations (typically: none), (3) definition of genuine emergency, (4) statement that refusal has no adverse consequences, (5) acknowledgement by employees they’ve read and understood it.
Q5: What happens if an employee files a dispute?
A: The FWC will require evidence of your policy, proof of training, and management behaviour. If you don’t have a policy, the FWC will assume you breached the right. If you have a policy but managers ignore it, you’ll likely lose.
Q6: How long does the FWC process take?
A: 6–10 weeks on average, from application to decision. Conciliation can accelerate it if both parties agree to settle.
Q7: What’s the cost of a right to disconnect application?
A: The employee pays the $92.70 application fee. Your cost is legal advice ($2,000–$5,000) and management time.
Q8: Can I apply for arbitration instead of a hearing?
A: Yes. If you and the employee agree to binding arbitration before a hearing, the FWC can facilitate it. This is faster and cheaper than a full hearing.
Q9: What are the consequences if I lose a dispute?
A: The FWC can issue an order stopping you from breaching the right to disconnect. Ongoing breaches can result in penalties up to $15,600 per breach (or higher for serious or repeated breaches). Employees can also claim compensation for any financial loss (lost wages, stress leave, etc.).
Q10: How do I prove I didn’t breach the right to disconnect?
A: Show (1) a written policy that was communicated and trained, (2) management behaviour that aligns with the policy, (3) no after-hours contact (or contact only for documented emergencies), and (4) no adverse actions taken against the employee for refusing after-hours contact.
The Bottom Line for Employers
The right to disconnect is now law. It’s not going away. Disputes will increase as employees become aware of the right and employers continue to send 9 PM Slack messages.
The best defence is a written policy, manager training, and behaviour that matches the policy. The FWC doesn’t care what you intended — it cares what you did.
If you don’t have a right-to-disconnect policy in place by now, you’re exposed. Create one today. Train your leadership tomorrow. The cost of a policy is zero. The cost of a dispute is $5,000+ and a public FWC decision against your business.
Need Help?
Fair Work Centre members get instant access to right-to-disconnect policy templates, manager training guides, and direct advice from employment lawyers on dispute strategy.
Call 1300 161 828 to learn about membership or get a free initial guidance call for direct employment law advice on dispute strategy.
Fair Work Centre is an independent private organisation providing advisory services to employers only. It is not associated with or authorised by the Fair Work Ombudsman, the Fair Work Commission, or any government authority.
