The Right To Disconnect Stops At The Border. The Overtime Bill Does Not.

The right to disconnect does not apply to your offshore staff. It is a Fair Work Act right, and the Act does not follow an employee working in Manila or Ho Chi Minh City for an Australian business. What follows them is their own country's overtime law, which prices the message you have been sending after dinner for free.

Most founders have this backwards. They assume the exposure sits in Australia, where the rule is loud and new. If you are weighing the statutory load of an overseas hire, an employer of record carries those obligations in the host country, which is where they live.

Why the right to disconnect and offshore staff never meet

The Fair Work Ombudsman is narrow about who holds the right. An employee can refuse to read or respond to contact outside working hours unless that refusal is unreasonable, and the factors deciding unreasonableness turn on the reason for the contact, how disruptive it is, extra pay for availability, seniority and personal circumstances.

The Commission wrote the term into every modern award on 26 August 2024. It reached small business employers on 26 August 2025.

None of it reaches a worker employed under Philippine or Vietnamese law: the instrument conferring the right is an Australian award covering Australian employment. The border that decides which Fair Work obligations apply to an overseas hire decides this one too.

Does an employee based overseas get the right to disconnect?

No. An Australian award term cannot attach to employment governed by another country's labour code.

The first rulings set the bar higher than anyone expected

In Kalleske v Mcguire [2026] SAET 106 and Elliot v Mcguire [2026] SAET 107, the South Australian Employment Tribunal decided the first cases on the term. Two apprentices described messages sent on days off and while unwell. Neither established a breach. The Tribunal separated communicating in an unwelcome way from preventing someone from disconnecting.

The right is a right to ignore. Pressure is not prevention.

So the Australian rule is weaker than the headlines suggested, and the overseas version does not exist. Which leaves what nobody costs.

What your offshore team has instead, and what it bills

Article 87 of the Philippine Labor Code pays work beyond eight hours a day at the regular wage plus at least 25 per cent. Article 86 adds a night differential of not less than 10 per cent for every hour between ten at night and six in the morning. Floors, not ceilings, and percentages of whatever you pay.

What does one evening message a day actually cost?

Sydney runs three hours ahead of Manila under daylight saving, so nine in the evening here is six there, an hour past a standard day.

Take the National Capital Region floor, ₱755.00 a day under Wage Order NCR-28, effective 26 September 2026. That is ₱94.38 an hour, and the hour past eight bills at ₱117.97. Five nights a week is ₱589.85, or ₱28,313 across 48 working weeks, at the legal minimum. As a share of payroll: five extra hours against a forty-hour week is 12.5 per cent more hours paid at 125 per cent, so 15.6 per cent on that wage bill. For nothing you could not have asked for at eleven the next morning.

Related reading

• Hiring a Philippines contractor: am I breaking Australian law?
• Ensuring the quality of work delivered by an overseas team

Where this argument is weakest

Plenty of overseas employees never claim the hour. They answer, say nothing, and the premium is never invoiced. Enforcement against one evening message is close to theoretical.

That is an argument about getting away with it, not about the cost. The hour is worked either way, and an unbilled statutory entitlement is a liability whether or not anyone calls it in. It also sets the norm you will manage against once the person is senior enough to push back. The same discipline that governs whether overseas staff work on Australian public holidays belongs here. Get advice on your own arrangement.

My position: write the contact window into the role in week one, not after the first complaint, and pay the premium when you break it. For the loaded number before you set that window, run a role through and see it.

So, the question. If the right to disconnect never applied to your offshore staff, why does your team still behave as though it did?