Since 26 August 2025, every Australian employer in the national system is covered by the right to disconnect, including small business employers. The new right to disconnect arrived for larger employers a year earlier, on 26 August 2024, under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. If your business has not yet set written expectations about contact outside work hours, you are now operating under the new laws without a framework to manage them.
The rules are narrower than much of the early commentary suggested, and broader in one respect that catches employers off guard: the right covers contact from third parties, not just from you. This guide explains what the Fair Work Act actually says, when an employee's refusal to respond is unreasonable, how a dispute reaches the Fair Work Commission, and what a workplace policy needs to cover. The intent is work-life balance; the mechanism is a right to refuse.
What the right to disconnect actually is
Section 333M of the Fair Work Act entitles an employee to refuse to monitor, read or respond to contact, or attempted contact, from their employer outside of the employee's working hours, unless the refusal is unreasonable. A second limb covers third parties: the employee may also refuse to monitor, read or respond to contact from a third party where that contact relates to their work and lands outside their working hours.
A right to refuse, not a prohibition on contact
The first design feature employers should absorb is that the right does not ban contact. The Fair Work Ombudsman states this directly: the rules do not make contacting an employee outside of work hours unlawful. You can still send the email. What you cannot rely on is an expectation that it will be read before the employee is next at work: the employee can refuse to respond to it until then, unless the refusal would be unreasonable.
The second design feature is that the third party limb means the protection follows the employee's working hours, not your office hours. A client who calls your project manager at 9pm is third party contact that relates to their work. An employee who declines to respond to that call is exercising the same right, and your systems (client expectations, escalation paths, on-call rosters) need to account for it.
Who is covered, and from when
The right to disconnect applies to national system employees. It commenced on 26 August 2024 for non-small business employers, and on 26 August 2025 for small business employers (an employer with fewer than 15 employees, counted by headcount including regular casual employees and staff of associated entities). Both dates are confirmed by the Fair Work Ombudsman and the Fair Work Commission. As of 26 August 2025, the staged introduction is complete and the right applies across the board.
The Fair Work Commission also added a right to disconnect term to all modern awards by 26 August 2024, so award-covered workplaces carry the right in the award itself as well as in the Act. Where an enterprise agreement contains a more favourable right to disconnect term, the agreement term continues to apply.
When is a refusal unreasonable?
The right runs out where the refusal is unreasonable, and section 333M(3) sets out the factors that must be taken into account. The list is not exhaustive, but it is mandatory:
- The reason for the contact or attempted contact
- How the contact is made and the level of disruption it causes the employee
- The extent to which the employee is compensated to remain available, or for working additional hours outside their ordinary hours (including non-monetary compensation)
- The nature of the employee's role and their level of responsibility
- The employee's personal circumstances, including family or caring responsibilities
The Act adds one bright line: a refusal is unreasonable if the contact is required under a law of the Commonwealth, a state or a territory.
In practice, the factors reward employers who have already done the structural work. A senior manager paid a salary that explicitly compensates availability, contacted once about a genuine emergency, is at one end of the spectrum. A junior casual receiving routine roster queries at 10pm, with no allowance and carer responsibilities at home, is at the other. Many disputes will sit between those poles, which is exactly why written expectations matter: the same phone call reads very differently when the employment contract, position description and policy all anticipated it.
What reasonable contact looks like
The Fair Work Ombudsman encourages employers and employees to discuss when it is reasonable to contact an employee outside their working hours, and to set expectations up front. Awards may also permit required contact in defined situations, for example where an on-call allowance is paid and the employee needs to be notified of a recall to work. The workable approach for an employer is to define, in writing:
- Which roles are expected to monitor or respond after hours, and what compensates that availability (allowance, salary loading, time in lieu)
- What counts as an emergency that justifies out-of-hours contact for any role
- Which channels are used for genuine urgency, so a late email is understood as next-business-day by default
- How client and supplier contact is routed after hours
Disputes: workplace level first, then the Fair Work Commission
The Act builds a two-step dispute pathway. Under section 333N, the parties must first attempt to resolve a dispute about an employee's refusal to monitor, read or respond to out-of-hours contact at the workplace level, by discussions between the employee and the employer. That step is not optional politeness; it is the statutory starting point.
If workplace discussions do not resolve it, either party can apply to the Fair Work Commission (the application is Form F92). The Commission can make orders under section 333P, and it must start dealing with an application within 14 days. The orders run in both directions:
- An order that an employee stop unreasonably refusing to monitor, read or respond to contact
- An order preventing the employer from taking disciplinary or other action against the employee because the employer believes the refusal is unreasonable
- An order preventing the employer from continuing to require the employee to monitor, read or respond, where the refusal is not unreasonable
The Commission cannot order the payment of money in these disputes, but contravening a section 333P order is a civil remedy provision under the Act. The Commission can also deal with the dispute in other ways, including mediation, conciliation, expressing an opinion or making a recommendation, and can arbitrate where both parties agree.
One status point worth knowing: the Act requires the Commission to publish written guidelines on the operation of the right to disconnect, and as at July 2026 it has formally deferred them until enough case law exists to inform them (a November 2025 statement confirms the deferral). Employers waiting for the guidelines before acting are waiting for a document with no published date.
The right to disconnect is a workplace right
Section 333M(4) puts it beyond argument: the right to disconnect is a workplace right within the meaning of the general protections in Part 3-1 of the Fair Work Act. An employer must not take adverse action against an employee because they exercised it.
This is where the real legal exposure sits for employers, and it deserves plain language. Disciplining, demoting, cutting the hours of, or dismissing an employee because they declined to answer out-of-hours contact invites a general protections claim, with the reverse onus that comes with it. The Fair Work Commission's own fact sheet points dismissed or disciplined employees to the general protections jurisdiction. Performance-managing someone for "responsiveness" without first checking whether the underlying expectation was reasonable under section 333M(3) is the most predictable way for an employer to convert a workload question into a legal claim.
About to act on a perceived responsiveness problem? If out-of-hours contact is any part of the picture, call Daniel on 1300 23 44 23 before the conversation happens, not after.
What employers should do now
The right to disconnect does not require employers to switch off their businesses. It requires them to be deliberate about availability. The practical sequence:
- Audit the contact reality. Who actually gets contacted outside their working hours, how often, through which channels, and is any of it compensated?
- Fix the structural mismatches. Roles with genuine availability expectations need that expectation in the contract or position description, with compensation the section 333M(3) factors will recognise.
- Put a written policy in place. Define reasonable contact, emergency criteria, channel rules and the workplace-level dispute step. Flexible work arrangements and hybrid rosters make this more important, not less, because "outside working hours" varies employee by employee.
- Brief your managers. The disputes the Commission sees will often trace back to a manager's late-night message habits, not to a board decision.
The Right to Disconnect Pack delivers that framework as a fixed-fee engagement, built for your roles rather than downloaded from a template library. For employers reviewing their broader policy suite at the same time, the policies, procedures and compliance service covers the full framework.
The right to disconnect rewards employers who write their expectations down and penalises the ones who run on assumed availability. The legislative framework is now fully in force for every employer size, the award terms are in place, and the Commission's case law is starting to accumulate. The businesses that will never see a Form F92 are the ones that did the policy work early.
About the author. Daniel Holbrook is the founder of Brookvale HR Solutions. He advises Australian employers on workplace policy, availability frameworks and employment compliance, and prepares after-hours contact protocols personally for every engagement. More about Daniel.
