March 2026
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 Key Work Health and Safety Statistics 2024 report found that mental health conditions accounted for 10.5% of all serious workers' compensation claims in 2022-23 - a 97.3% 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.
This article examines the dual legal framework, the evidence linking after-hours contact to psychological injury, the specific psychosocial hazards triggered by availability creep, the penalties now attaching to both regimes, and why the people data organisations generate - or fail to generate - is increasingly the determinant of whether a director can demonstrate that the duty of care was discharged.
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 distinction matters: an employer who contacts an employee after hours has not prima facie breached the Act. But an employer who disciplines, performance-manages, or otherwise takes adverse action against an employee for reasonably exercising their right to disconnect has committed a general protections violation.
The enforcement mechanism is tiered. Disputes must first be escalated internally. If unresolved, either party can apply to the Fair Work Commission, which can issue orders including stop orders requiring an employer to cease contacting an employee, or requiring an employee to stop refusing reasonable contact. Non-compliance with a Commission order carries civil penalties: up to $18,780 for individuals and $93,900 for corporations per contravention. The original legislation also preserved the possibility that deliberate non-compliance with Commission orders could be treated as a criminal matter.
As of early 2026, the Commission is still in the relatively early stages of issuing formal guidelines - its stated position is that it will be better placed to do so once it has dealt with a body of actual disputes. What that means practically is that the boundaries of 'unreasonable' refusal are still being drawn by case law, 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 (adopted across every Australian jurisdiction except Victoria, which has its own equivalent legislation), 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. Health is defined to include psychological health. The WHS Regulations, as amended, now expressly require PCBUs to manage psychosocial risks in the same way as physical hazards: identify, assess, control, and review.
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: Work design that generates excessive workload, time pressure, or cognitive demands. After-hours contact that extends the effective working day without compensating rest creates sustained high job demands, which Safe Work Australia has expressly recognised as a psychosocial hazard associated with working long hours.
Low job control: Employees who cannot set or maintain boundaries around their working hours experience reduced control over their work, a well-established driver of psychological harm.
Poor support: Managers who contact staff after hours without awareness of their personal circumstances - family responsibilities, caring duties, health conditions - signal inadequate managerial support.
Lack of role clarity: Ambiguity about when an employee is genuinely 'off duty' creates uncertainty that prolongs cognitive engagement with work and prevents psychological detachment.
Poor organisational change management: Organisations transitioning from office-based to hybrid work without clear after-hours contact protocols generate availability uncertainty that compounds existing psychosocial risk.
Remote or isolated work: Employees working from home or in distributed teams face structural barriers to switching off that are absent in traditional office environments.
The legal significance is direct: infringements of the right to disconnect - expectations of after-hours availability, adverse action for not responding, implicit or explicit pressure to remain contactable - may manifest as complaints to a WHS regulator about high job demands or long working hours. As law firm Clayton Utz noted in June 2025: 'with safety regulators becoming increasingly active in the psychosocial risk space, infringements of the right to disconnect may manifest as complaints to a safety regulator about high job demands or long working hours.'
This is the dual exposure directors need to understand. The same conduct - a manager sending emails at 10pm and expecting responses, performance-managing an employee who does not reply out of hours, creating a team culture where disconnecting is career-limiting - can simultaneously generate:
A general protections application to the Fair Work Commission
A WHS complaint to SafeWork NSW, WorkSafe Victoria, or the relevant state regulator
A workers' compensation claim for psychological injury
A negligence or duty of care action if the injury is sufficiently serious
The Evidence: What After-Hours Contact Does to People
The legislative change did not arrive in a vacuum. It was a response to a documented and escalating pattern of psychological harm connected to blurred work-life boundaries in post-pandemic hybrid work environments.
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%). A separate survey by the Centre for Work Health and Safety found that, due to the ability to work from home, employees were working longer hours, experienced increased demands from their superiors, or found it hard to 'switch off' from work outside working hours.
Research published in the Journal of Industrial Relations in 2024, examining the Australian right to disconnect and international comparator regimes, found that hyperconnectivity and the blurring of work-life boundaries can cause workers to feel overwhelmed and anxious, psychologically exhausted, sleep-deprived, emotionally exhausted, and unable to concentrate. An aggravating factor is social isolation. Combined, these effects can lead to stress, burnout, and depression, 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. Only 13% reported never being contacted by their employer outside of work hours. In the 12 months following the introduction of the right to disconnect, 56% of Australian employers reported that an employee had formally raised concerns or made requests related to their right to disconnect.
Against this backdrop, the Safe Work Australia data is stark. Mental health conditions accounted for 10.5% of all serious workers' compensation claims in 2022-23 - a 19.2% increase on the previous year and a 97.3% increase over the preceding decade. The median time lost for psychological injury claims exceeds five times that of all physical injuries and diseases. Updated figures from Safe Work Australia's 2023-24 data show mental health claims have reached 12% of all serious workers' compensation claims, representing 17,600 claims in that period alone. Median time off work is 35.7 weeks. Median compensation is $67,400 per claim.
These are not statistics about workers in extreme or unusual circumstances. They are the aggregate result of ordinary psychosocial hazards - including high job demands, poor boundaries, inadequate control, and insufficient support - operating across mainstream Australian workplaces. The right to disconnect is, at its core, a legislative acknowledgement that after-hours contact culture is a contributing factor to this harm.
What Prosecution Looks Like: From Conversation to Criminal Exposure
The trajectory from a persistent after-hours email culture to a criminal prosecution may seem remote. The case law suggests it is not.
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. The case illustrates the direct line between unreasonable working demands - the category into which persistent after-hours contact expectations fall - and financial penalty under existing WHS frameworks, even before the right to disconnect legislation was in force.
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) for failing to properly identify and assess risks relating to the psychological wellbeing of its employees, arising from what was described as a toxic culture within the Coroners Court between 2015 and 2018. The prosecution demonstrates that psychosocial risk failures resulting from workplace culture - not just specific incidents - attract substantial penalties.
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 while employed by MP Monique Ryan. The case attracted national attention and contributed directly to the political momentum that produced the right to disconnect legislation. It also illustrated the reputational dimension of excessive hours claims - the employer's conduct was publicly litigated in a way that the right to disconnect's formal dispute process now makes more accessible for all workers.
The Criminal Frontier: Industrial Manslaughter
Under the model WHS Act, a clear disregard for psychosocial risk resulting in the death of an individual may attract industrial manslaughter charges, with substantial terms of imprisonment and fines for individuals and corporations. Every Australian jurisdiction except South Australia and the Northern Territory has enacted industrial manslaughter provisions. Victoria, NSW, Queensland, Western Australia, and the ACT all carry maximum penalties of between 10 and 25 years imprisonment for individuals and fines in the hundreds of thousands to millions of dollars for body corporates.
The threshold for psychosocial harm reaching this level is extreme - but it exists. The regulatory trajectory in Australia is towards greater individual accountability for directors and officers under WHS legislation, not less. A director who can demonstrate that the organisation had a systematic, evidence-based approach to identifying and managing psychosocial hazards - including after-hours contact practices - is in a categorically different position to one who relied on a policy document and an annual survey.
Two Laws, One Conduct: How Directors Navigate the Intersection
The practical governance challenge for directors is that the right to disconnect and WHS psychosocial obligations operate in parallel, with overlapping but distinct compliance requirements, different regulators, and different remedies. A single after-hours contact incident can generate multiple concurrent legal proceedings across different forums.
The key governance questions directors should be putting to their management teams are:
1. What is our actual after-hours contact culture - not our policy?
Most organisations have policies that say something about work-life balance. Very few have data that tells them what actually happens. The gap between a written policy and actual cultural practice is precisely the gap that generates liability. Directors need reporting on the pattern of after-hours contact - the frequency, the channels, the seniority of the senders, the roles of the recipients - not just confirmation that a policy exists.
2. Have we mapped after-hours contact as a psychosocial hazard?
The WHS Regulations require a proactive risk assessment. High job demands - including those generated by after-hours contact expectations - must be identified, assessed, and controlled. A risk register that includes physical hazards but treats psychosocial risk as a HR matter is inadequate. The requirement is to manage psychosocial risk with the same rigour as manual handling or fall hazards. SafeWork NSW, WorkSafe Victoria, and SafeWork SA regulators are actively auditing psychosocial risk frameworks and checking not just for policies, but for evidence of assessment and control.
3. Do we have grievance mechanisms that capture this risk signal?
An employee who feels unable to disconnect but does not raise a formal complaint is not a protected organisation. The reverse is true: the absence of reported concerns about after-hours contact in a large workforce with a hybrid working culture is evidence of a reporting failure, not a safe culture. Effective psychosocial risk management requires grievance mechanisms that are trusted enough to be used and sensitive enough to surface early-stage concerns before they develop into compensation claims.
4. Are managers trained on both obligations?
Line managers are simultaneously the primary risk creators and the primary risk controls in the after-hours contact context. A manager who sends emails at 11pm and expects same-night responses is creating a psychosocial hazard. A manager who is trained to understand both the Fair Work right-to-disconnect rules and the WHS duty to control job demands is a control measure. Training records, incident reporting patterns, and staff feedback on management practices are the evidence that demonstrates this control is effective.
5. Is our hybrid work design reviewed against psychosocial risk criteria?
The shift to hybrid work was, for most organisations, a rapid operational decision. The psychosocial risk assessment of hybrid work design - including its implications for after-hours boundaries, the blurring of personal and professional space, role clarity, and access to support - has often lagged behind the operational implementation. Directors should be asking: has our hybrid work model been formally assessed against the fourteen psychosocial hazard categories? What did that assessment find? What controls are in place?
What Good Looks Like: From Policy to Evidence
The organisations that are best positioned under both the right to disconnect and WHS psychosocial frameworks are not necessarily those with the most comprehensive written policies. They are the organisations that have moved from aspiration to evidence.
Good practice in this space shares four characteristics:
Proactive hazard identification: Formal risk assessment processes that identify after-hours contact as a psychosocial hazard, document the level of exposure, and assign control responsibility. This is not a HR policy exercise - it is a WHS risk management function with board-level visibility.
Accessible and trusted reporting channels: Mechanisms that allow workers to raise concerns about availability expectations, workload, and boundary violations confidentially and without fear of adverse consequences. The effectiveness of these mechanisms is measurable - through report frequency, resolution rates, and worker confidence surveys.
Management accountability data: Regular reporting to the board on manager behaviour relating to after-hours contact - not just complaints about it. Organisations using digital communication platforms have the data; what is often missing is the framework to surface and interpret it as a safety signal.
Demonstrated review cycles: Evidence that control measures are being reviewed and revised in response to incident data, cultural surveys, and changing work patterns. A psychosocial risk management system that was set up in 2022 and has not been reviewed since is not meeting the regulatory standard of ongoing management.
Organisations using Salus can demonstrate each of these characteristics with verified data. The Salus platform captures psychosocial risk signals from across the workforce, tracks reporting trends over time, and provides the kind of longitudinal evidence of proactive risk management that both WHS regulators and directors' insurers want to see. In the context of the right to disconnect, Salus data on workload concerns, boundary violations, and management behaviour provides the evidence base that transforms a compliance statement into a demonstrated governance practice.
Key Takeaways
Australia's right to disconnect commenced 26 August 2024 for non-small businesses and extended to all employers on 26 August 2025. It protects employees who reasonably refuse to monitor, read, or respond to after-hours contact. 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 Work Health and Safety legislation in every Australian jurisdiction - specifically the hazards of high job demands, low job control, poor support, and lack of role clarity, all of which Safe Work Australia's Model Code of Practice expressly requires employers to identify, assess, control, and review.
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 (Safe Work Australia). The Centre for Future Work found 71% of Australian employees had worked outside scheduled hours due to overwork or manager pressure.
Prosecutions demonstrate the risk is real: a Melbourne law firm was fined $50,000 for self-evidently excessive working hours; Court Services Victoria was fined $379,157 for failing to manage psychosocial risk from a toxic workplace culture; Sally Rugg settled for $100,000 over unreasonable additional hours. All jurisdictions except SA and NT have industrial manslaughter provisions.
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. Directors face personal exposure under WHS officer duties if they do not exercise due diligence over the organisation's psychosocial risk management.
Effective governance requires moving from policy to evidence: proactive hazard identification, accessible reporting channels, management accountability data, and documented review cycles. Salus provides the longitudinal reporting infrastructure that turns a compliance intent into a demonstrable, evidence-based psychosocial risk management system.
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. Safe Work Tech's Salus platform gives directors the longitudinal workforce data they need to demonstrate that after-hours contact risks are being proactively identified, reported, and controlled - not just acknowledged. Contact Safe Work Tech to understand how Salus can close the gap between your Fair Work compliance and your WHS duty of care.