Why has FWC seen so few Right to Disconnect applications?

Despite much fanfare about its implications for employers and employees alike, the national workplace tribunal has seen very few claims being brought by workers seeking to switch off outside of hours. Here, senior lawyers unpack why we haven’t seen a tsunami of claims being brought.

The Right to Disconnect came into effect on 26 August 2024 for employees not employed by small-business employers, and it commenced for employees of small-business employers on 26 August 2025. It protects employees who refuse to monitor, read, or respond to contact or attempted contact from an employer or third party outside of the employee’s working hours, unless that refusal is unreasonable.

At the time of its implementation, it was seen as a win for employee wellbeing, which would help lift productivity and be a “catalyst for change”, with claims expected to gather pace in 2025.

However, while half of all managers have been asked by their staff about the Right to Disconnect, research has shown that Australians have not felt confident using their new right.

Last week, the Fair Work Commission released its 2024–25 annual report, which detailed that the workplace tribunal received just seven applications under the Right to Disconnect dispute provisions.

With no published decisions yet out of the commission, what’s not clear from those numbers, Kingston Reid partner Emily Baxter said, is whether disputes are being filed by employers claiming employees are unreasonably refusing to respond, or by employees claiming they have the right to refuse out-of-hours conduct.

Either way, and at least for now, there is no wave of claims being brought by employees against businesses. To understand why, HR Leader spoke with numerous senior lawyers to understand what’s happening on the ground.

A political football

Frequently, Dentons partner Paul O’Halloran reflected, workplace relations issues are a political football for political platforms.

“In 2023, the Greens used their balance of power in the Senate to negotiate amendments with the Labor government to introduce Right to Disconnect laws. The Greens framed the reforms as protecting workers’ mental health and ensuring digital technologies don’t lead to exploitation,” he said.

The minimal number of applications lodged with the FWC shows, O’Halloran argued, “that these laws are largely unnecessary”.

“Australia’s workplace relations system already provides strong protections – including limits on working hours and entitlements to overtime and penalty rates,” he said.

“Most Australians have a solid work ethic, and in an age where digital devices monopolise our leisure time as much as our work day, it was misguided for the Greens to assume such laws were needed by the majority of workers.”

Available alternatives

Moreover, O’Halloran said, flexible work-from-home arrangements “already offer an effective alternative” to concerns about workplace disruption and distraction.

“By giving employees greater control over how and when they work, these arrangements lessen the need for drastic measures such as disconnection orders,” he said.

Kingston Reid partner Emily Baxter made a similar point, noting that the Right to Disconnect provisions reinforce a more traditional way of working and are intended to protect against “availability creep” – “a phenomenon whereby employees are gradually expected to increase their availability without corresponding reward”.

“The uptick in flexible work disputes (more than double last year’s numbers) may reflect evolving work patterns beyond the traditional nine-to-five. To achieve this flexibility, there must be a bit of give and take,” she said.

“In any event, this low number of applications suggests that there is little need for the commission’s intervention.”

Maybe, Baxter said, “that’s because parties are resolving any disputes themselves, or that a dispute about whether after-hours engagement was reasonable is generally short-lived and may not warrant third-party intervention”.

Proactive employers

For Clayton Utz partner Amanda Lyras, the relatively low number of Right to Disconnect applications is not unexpected.

“Employers have largely been proactive in this space, updating policies and contracts to set clearer expectations around after-hours contact, which helps prevent escalation of issues,” she said.

“Culturally, we have seen a shift in terms of many organisations being more cognisant of the impact of work on personal time and the need to support staff wellbeing.”

Jewell Hancock Employment Lawyers principal Trent Hancock added that the Right to Disconnect laws “were widely publicised and therefore well known to employers, meaning that high rates of non-compliance were unlikely”.

Moreover, he said, “national system employees already had the right to refuse to work unreasonable additional hours, which overlaps with the Right to Disconnect”.

Financial or vocational incentives

There is also, Lyras said, “little incentive” to run a standalone application, since the commission can’t award financial compensation in these matters.

Instead, she said, “we’re more likely to see the right invoked indirectly from a claims perspective – for example, through general protections claims, where compensation is uncapped and the onus shifts to the employer to justify their actions”.

“We are also seeing an increase in claims around excessive working hours, but these are framed in a safety/reasonable hours of work context, rather than by invoking the Right to Disconnect.”

A redundant entitlement?

There may also be an argument, Baxter suggested, that the issues these laws aimed to address “are less prevalent in Australian workplaces than initially anticipated”, as was argued by opponents to the legislation at the time it was passed.

“It may be recalled that when the anti-bullying laws were introduced into the Fair Work Act in January 2014, they were labelled a ‘toothless tiger’,” she said.

“During the first six months, nearly 350 applications for assistance were made to the commission. Over a decade later, claims have reached a record high of 1,037 during the 2024–25 reporting period.”

Standalone disputes about out-of-hours contact “weren’t overly common to begin with”, Hancock said in support, “and were largely being managed at the workplace level already”.

Looking ahead

From the outset, O’Halloran declared he believed there is limited need for Right to Disconnect orders.

More likely, he said, “this new workplace right will be used tactically by employees in adverse action claims, serving as leverage in broader disputes over other workplace grievances”.

“It effectively adds another avenue for employees to allege adverse action against their employer within Australia’s expanding framework of employment claims,” he said.

This all said, Lyras pointed out, it is still early days. The right only extended to small-business employers in August of this year, she said, “so we may see a lift in applications as more workers come under the scheme”.

For the above reasons, Hancock concluded, “we don’t expect a flood of applications in the future”.

Alternatively, Baxter mused, perhaps “to fully appreciate the benefit of the FWC’s new powers to deal with Right to Disconnect disputes, we should check back in 10 years’ time”.