AI and the right to disconnect

An AI agent can work through a longer job on its own while the person who set it going gets on with something else. What we're seeing is people setting agents up for research, first drafts and file summaries, and enjoying watching a pile of work move.

It also means the work can keep going after the person has stopped. An agent can run through the evening. A job left running overnight can be hard to leave alone, because it may need a quick check or a fix before it can carry on.

The federal right to disconnect has applied to national system employees of businesses of every size since 26 August 2025, and it does not mention technology at all.

1What the right to disconnect is

Under the right to disconnect, an employee can refuse to monitor, read or respond to contact from their employer outside their working hours, unless refusing is unreasonable. The same applies to work-related contact from other people, such as clients.

The right is set out in section 333M of the Fair Work Act. Employees of larger businesses have had it since 26 August 2024, and employees of small businesses, those with fewer than 15 employees, gained it on 26 August 2025. The Fair Work Ombudsman says the right "does not prohibit employers from contacting their employees".

So when is refusing unreasonable? The Act lists five things that must be taken into account:

1. The reason for the contact.

2. How the contact is made, and how much it disrupts the employee.

3. How far the employee is compensated, in money or otherwise, for being available or working extra hours.

4. The nature of their role and their level of responsibility.

5. Their personal circumstances, including family or caring responsibilities.

Refusing is also unreasonable where a law requires the contact.

A filing deadline due the next morning may weigh towards a refusal being unreasonable. So may a role whose pay reflects an expectation of some after-hours availability. Seniority is one of the things weighed, and a senior employee still has the right.

Some awards make provision for after-hours work. The Legal Services Award 2020, which covers legal support staff, law clerks and law graduates, lets an employer require a response from an employee who is being paid to stand by, and to contact an employee about a recall to work. In accounting practices, award coverage depends on the role, so it is a question to check person by person.

The law is still new, and the case law is thin. On 19 August 2026, the South Australian Employment Tribunal handed down the first reported substantive decisions on the right to disconnect, Kalleske v Mcguire and Elliot v Mcguire. The Tribunal accepted that an employer's after-hours messages had discouraged the employees from always disconnecting. It found no breach of the award, because the employees were not prevented from refusing to respond and suffered no consequence when they did.

The decisions did not settle how the five section 333M factors apply when deciding whether an employee's refusal is unreasonable. The Fair Work Commission has said it will delay its written guidelines on how the right works "until there is enough case law to inform them".

This article provides general information about Australian workplace law and is not legal advice. Circumstances differ between workplaces and employees. For advice about a particular situation, consult the Fair Work Act, the Fair Work Commission, the Fair Work Ombudsman or a qualified adviser.

2AI after hours

A lot of the after-hours AI use we hear about is people choosing to keep going. Researchers at the University of California, Berkeley spent eight months inside a US technology company of about 200 people, watching how work changed once staff had generative AI. They found that "people would send prompts during lunch, before meetings, or in the evening when an idea came to mind", and that people often stretched their work into more hours of the day without being asked to. The research is still under way.

AI developers now offer tools that can run several tasks at once in the cloud, with progress you can check on as they go.

In a randomised experiment across 66 firms and 7,137 knowledge workers, though, people who actively used an AI assistant built into their everyday tools spent about two fewer hours a week on email, and did less work outside regular hours. The study was run with Microsoft, whose tool it tested.

AI also makes asking for one more thing almost effortless: another version of a letter, or a fresh set of numbers. What we are noticing is that more of these requests can arrive in the evening, and each one lands in a colleague's inbox as work.

3What it means for firms

The five factors in the Act point to the questions a firm can settle ahead of time: which contact is urgent, how it arrives, who is paid to be available, which roles carry that responsibility, and whose circumstances need more room. A client email to a junior outside working hours counts as work-related contact from a third party, and the same weighing applies.

Some people prefer to work flexibly outside standard hours. A firm can watch for the point where one person's choice starts to set an expectation that others will be available too.

The Act talks about contact from an employer or a third party. Whether an automated agent notification outside working hours is treated as employer contact under the provision has not yet been tested in a published decision. A firm can decide for itself how it wants its people to use agents overnight, without waiting for the Commission.

The Centre for Future Work's 2025 survey of 1,001 Australian workers found employees worked an average of 3.6 hours of unpaid overtime a week, about 173 hours a year. The researchers noted that unpaid overtime among full-time employees has been slowly declining and suggested the right to disconnect may be having an effect, though a survey alone cannot show that.

In law, the 2025 Victorian Lawyer Census found 53% of the Victorian lawyers who completed its wellbeing module were at risk of burnout. The regulator's research brief found that an unacceptable workload was one of the conditions most strongly linked to psychological distress and burnout risk. Evening contact is one part of workload a firm can set expectations around.

The rules are still moving, as they did with earlier changes in how we work. In February 2026, New South Wales passed a new duty that will require businesses to manage the health and safety risks of digital work systems, which the Act defines to include AI. Those risks include excessive or unreasonable workloads. Most of the new provisions have not commenced yet and will start on dates announced by the NSW Government. Federally, the National AI Plan released in December 2025 relies on existing laws to manage AI for now.

4What switching off looks like

A firm can let agents run overnight while setting them to stop and wait for review in working hours. Non-urgent messages can be scheduled for the morning, so a staff member who chooses to work later can keep doing so without sending messages to colleagues at that time. The team can agree what counts as urgent and who is covering it.

Five decisions a firm can make now

5Where we come in

Our investigation looks at how your firm's work gets done, including when it happens and how your people are using AI along the way. It comes with a draft AI use policy, which is a natural place for the firm to set out how it wants AI used outside working hours. The findings belong to your firm whether or not we go any further together.

If you would like to understand how AI fits into your firm's working day, reach out to our team. The first conversation works out whether your firm is the right fit for the AI Uplift Program, and whether we are the right people to help.

Five decisions to make now