The Right to Disconnect: Why Australia's New Law Is a Psychosocial Hazard Obligation in Disguise

Executive Summary

When the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 introduced Australia's right to disconnect on 26 August 2024, most organisations treated it as a Fair Work compliance exercise. Update the employment contracts, brief the managers, review the after-hours contact policy. Done.

That framing misses the more consequential legal obligation attached to the same conduct.

The right to disconnect did not create a new psychosocial hazard. High job demands, availability creep, and the inability to psychologically detach from work already sat squarely within the fourteen psychosocial hazards that every Australian employer is legally required to identify, assess, control and review under the model Work Health and Safety Regulations. What the right to disconnect did was signal, with legislative force, that after-hours contact is now a recognised workplace risk, one that regulators, safety inspectors, and injured workers' legal teams are increasingly equipped to pursue.

The evidence is not ambiguous. Safe Work Australia's most recent Key Work Health and Safety Statistics report found that mental health conditions accounted for 12% of all serious workers' compensation claims in 2023-24 (17,600 claims), a 161% increase over the preceding decade. Median time lost for psychological injury claims exceeds five times that of physical injuries, and median compensation has reached $67,400 per claim. A Melbourne law firm was fined $50,000 for forcing a junior lawyer to work hours that a court described as “self-evidently excessive.” Court Services Victoria was prosecuted and fined $379,157 for failing to identify and control psychosocial risks resulting in a toxic workplace culture.

The right to disconnect sits at the intersection of two regulatory frameworks that are converging: Fair Work Act obligations around reasonable contact, and Work Health and Safety Act obligations to control psychosocial risk. For directors, this convergence is not theoretical. It is the point at which a cultural failure in after-hours contact practices can simultaneously attract a Fair Work Commission order, a WHS investigation, a workers' compensation claim, and a negligence action.

What the Right to Disconnect Actually Says

The right to disconnect, enacted under section 333M of the Fair Work Act 2009 (Cth), provides that employees may refuse to monitor, read or respond to contact or attempted contact from an employer or a third party outside their working hours, unless that refusal is unreasonable. The right commenced for non-small business employers (15 or more employees) on 26 August 2024, and extended to small business employers on 26 August 2025, covering all 155 modern awards.

Five factors must be considered in assessing whether a refusal is unreasonable:

• The reason for the contact or attempted contact
• How the contact is made and the level of disruption it causes
• The extent to which the employee is compensated or paid extra for working additional hours or remaining available outside ordinary hours
• The nature of the employee's role and level of responsibility
• The employee's personal circumstances, including family or caring responsibilities

The right does not prohibit employers from making contact outside working hours. It protects employees who choose not to respond where that choice is reasonable. The enforcement mechanism is tiered: disputes must first be escalated internally, then to the Fair Work Commission, which can issue stop orders. Non-compliance carries civil penalties of up to $18,780 for individuals and $93,900 for corporations per contravention.

As of early 2026, the Commission is still in the relatively early stages of issuing formal guidelines, making this a period of heightened uncertainty for employers.

The WHS Obligation the Right to Disconnect Doesn't Mention

The right to disconnect created a Fair Work entitlement. But it did not create the underlying safety obligation. That already existed, and for directors and officers, it is the more serious exposure.

Under the model Work Health and Safety Act, persons conducting a business or undertaking (PCBUs) have a primary duty to ensure, so far as is reasonably practicable, the health and safety of workers, including psychological health. Safe Work Australia's Model Code of Practice: Managing Psychosocial Hazards at Work identifies fourteen categories of psychosocial hazard. The following are directly implicated by after-hours contact and availability creep:

• High job demands: after-hours contact that extends the effective working day without compensating rest creates sustained high job demands
• Low job control: employees who cannot set or maintain boundaries around their working hours experience reduced control over their work
• Poor support: managers who contact staff after hours without awareness of personal circumstances signal inadequate managerial support
• Lack of role clarity: ambiguity about when an employee is genuinely 'off duty' prevents psychological detachment
• Poor organisational change management: hybrid-work transitions without clear after-hours protocols compound psychosocial risk
• Remote or isolated work: employees working from home face structural barriers to switching off

The legal significance is direct: the same conduct, a manager sending emails at 10pm and expecting responses, performance-managing an employee who does not reply out of hours, can simultaneously generate a general protections application, a WHS complaint, a workers' compensation claim, and a negligence action.

The Evidence: What After-Hours Contact Does to People

A survey by the Centre for Future Work found that 71% of Australian employees had worked outside their scheduled work hours, often due to overwork or pressure from managers. The most commonly reported consequences were physical tiredness (35%), stress and anxiety (32%), and being mentally drained (31%).

Research published in the Journal of Industrial Relations in 2024 found that hyperconnectivity and the blurring of work-life boundaries can cause workers to feel overwhelmed, anxious, psychologically exhausted, sleep-deprived, and unable to concentrate, with associated physical health consequences including musculoskeletal disorders.

Robert Half research conducted in June 2024 among 1,000 full-time Australian office workers found that 87% were contacted outside of work hours, with more than a third (36%) contacted more than once a week. In the 12 months following the introduction of the right to disconnect, 56% of Australian employers reported that an employee had formally raised concerns related to their right to disconnect.

Against this backdrop, Safe Work Australia's most recent data shows mental health conditions have reached 12% of all serious workers' compensation claims, representing 17,600 claims in 2023-24 alone, a 161% increase over the preceding decade. Median time off work is 35.7 weeks. Median compensation is $67,400 per claim.

What Prosecution Looks Like: From Conversation to Criminal Exposure

The Melbourne Law Firm: $50,000 for Excessive Hours

A Melbourne law firm was recently fined $50,000 after a court found it had forced a junior lawyer to work hours described as 'self-evidently excessive,' including 24-hour days and 79-hour work weeks.

Court Services Victoria: $379,157 for Toxic Culture

In October 2023, Court Services Victoria was prosecuted, pleaded guilty, and fined $379,157 for breaching the Occupational Health and Safety Act 2004 (Vic) arising from what was described as a toxic culture within the Coroners Court between 2015 and 2018.

Sally Rugg: $100,000 Settlement for Unreasonable Hours

In 2023, former chief-of-staff Sally Rugg accepted a $100,000 settlement in a dispute over unreasonable additional hours, having claimed she was regularly working 70 to 80 hours per week. The case contributed directly to the political momentum that produced the right to disconnect legislation.

The Criminal Frontier: Industrial Manslaughter

Under the model WHS Act, a clear disregard for psychosocial risk resulting in death may attract industrial manslaughter charges. Every Australian jurisdiction except South Australia and the Northern Territory has enacted industrial manslaughter provisions, with maximum penalties of between 10 and 25 years imprisonment for individuals.

Two Laws, One Conduct: How Directors Navigate the Intersection

The key governance questions directors should be putting to their management teams:

1. What is our actual after-hours contact culture, not our policy?

Directors need reporting on the pattern of after-hours contact, the frequency, the channels, the seniority of senders, not just confirmation that a policy exists.

1. Have we mapped after-hours contact as a psychosocial hazard?

A risk register that includes physical hazards but treats psychosocial risk as a HR matter is inadequate. Regulators are actively auditing psychosocial risk frameworks and checking for evidence of assessment and control, not just policies.

1. Do we have grievance mechanisms that capture this risk signal?

The absence of reported concerns about after-hours contact in a hybrid workforce is evidence of a reporting failure, not a safe culture. Effective psychosocial risk management requires mechanisms trusted enough to be used.

1. Are managers trained on both obligations?

A manager who sends emails at 11pm and expects same-night responses is creating a psychosocial hazard. Training records and staff feedback are the evidence that a control is actually effective.

1. Is our hybrid work design reviewed against psychosocial risk criteria?

Directors should be asking whether the hybrid work model has been formally assessed against the fourteen psychosocial hazard categories, and what controls resulted.

What Good Looks Like: From Policy to Evidence

The organisations best positioned under both frameworks are not necessarily those with the most comprehensive written policies, they're the ones that have moved from aspiration to evidence:

• Proactive hazard identification, formal risk assessment that identifies after-hours contact as a psychosocial hazard, with board-level visibility
• Accessible and trusted reporting channels, mechanisms that allow workers to raise concerns confidentially and without fear of adverse consequences
• Management accountability data, regular reporting to the board on manager behaviour relating to after-hours contact
• Demonstrated review cycles, evidence that controls are being reviewed and revised in response to incident data and changing work patterns

An organisation using Salus can build toward each of these characteristics with real data: Salus's guided reporting captures psychosocial risk signals, including those relating to workload, availability expectations, and boundary violations, through an AI-led conversation, with every action taken timestamped and signed into an evidentiary record. That's the kind of longitudinal evidence directors and regulators alike look for, distinct from a compliance statement.

Key Takeaways

• Australia's right to disconnect commenced 26 August 2024 for non-small businesses and extended to all employers on 26 August 2025. Non-compliance with Fair Work Commission orders attracts penalties of up to $93,900 per contravention for corporations.
• The right to disconnect does not stand alone. After-hours contact expectations trigger psychosocial hazard obligations under WHS legislation, specifically high job demands, low job control, poor support, and lack of role clarity.
• The evidence base for harm is substantial: mental health conditions accounted for 12% of all serious workers' compensation claims in 2023-24 (17,600 claims), with median time off work of 35.7 weeks and median compensation of $67,400 per claim.
• Prosecutions demonstrate the risk is real: a Melbourne law firm fined $50,000, Court Services Victoria fined $379,157, and Sally Rugg's $100,000 settlement.
• The same after-hours contact conduct can simultaneously trigger a Fair Work Commission dispute, a WHS investigation, a workers' compensation claim, and a civil negligence action.
• Effective governance requires moving from policy to evidence: proactive hazard identification, accessible reporting channels, management accountability data, and documented review cycles.

If your organisation's response to the right to disconnect has been limited to a policy update and a manager briefing, the WHS psychosocial obligation attached to the same conduct is likely unaddressed.