The Right to Disconnect: What Australian Employers Need to Know

On 26 August 2024, the right to disconnect became law for employees of non-small businesses in Australia. From 26 August 2025, it extended to employees of small businesses as well. This means every employer in the national workplace relations system is now subject to the provisions.

The right to disconnect gives employees the legal right to refuse to monitor, read, or respond to contact (or attempted contact) from their employer outside of working hours, unless the refusal is unreasonable.

For many employers, particularly those who have built a culture of after-hours emails, late-night text messages, and weekend phone calls, this requires a genuine shift in how they communicate with staff. For others, it formalises what was already good practice.

This guide covers what the law actually says, what it means in practice, how to determine whether after-hours contact is "unreasonable," and what employers need to do to comply.

What the Law Says

The right to disconnect is set out in section 333M of the Fair Work Act 2009, inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.

The key provisions are:

1. An employee has the right to refuse to monitor, read, or respond to contact (or attempted contact) from an employer or a third party (such as a client or customer) that is related to work, outside of the employee's working hours — unless the refusal is unreasonable

2. Whether a refusal is unreasonable depends on a range of factors (discussed below)

3. A workplace term (in a Modern Award, enterprise agreement, or employment contract) cannot prevent an employee from exercising the right to disconnect

4. If there is a dispute about the right to disconnect, either party can apply to the Fair Work Commission for an order

5. The FWC can make a range of orders including:

   • An order for the employer to stop contacting the employee outside of working hours
   • An order for the employee to respond to contact
   • An order for compensation

Who Does It Apply To?

The right to disconnect applies to all employees covered by the national workplace relations system, which includes:

• All employees of constitutional corporations (companies incorporated under the Corporations Act)
• All employees in the Australian Capital Territory and the Northern Territory
• Employees in the federal public sector

For non-small business employers (15+ employees): The provisions commenced on 26 August 2024.

For small business employers (fewer than 15 employees): The provisions commenced on 26 August 2025.

The right applies to full-time, part-time, and casual employees. However, the practical operation differs depending on the employee's hours of work and the nature of their role.

What Counts as "Contact"?

The legislation uses the term "contact or attempted contact," which is deliberately broad. It includes:

• Phone calls
• Text messages and SMS
• Emails
• Messages via workplace communication platforms (Slack, Teams, WhatsApp groups, etc.)
• Push notifications from work apps
• Contact via social media
• Video call invitations
• Rostering notifications
• Any other form of communication

It also covers contact from third parties related to work — for example, a client calling an employee's mobile phone after hours. The employer does not need to be the one making direct contact; if the contact is work-related, the right applies.

When Is a Refusal "Unreasonable"?

The right to disconnect is not absolute. An employee cannot refuse all after-hours contact in all circumstances. The refusal is assessed for reasonableness based on the following factors (section 333M(3)):

1. The Reason for the Contact

Is the contact genuinely urgent or important? An emergency that requires immediate action is different from a routine query that could wait until the next working day.

Examples of potentially reasonable contact:

• A workplace emergency (fire, flood, safety incident)
• A critical system outage that the employee is responsible for
• A last-minute roster change due to illness
• A time-sensitive regulatory or legal matter

Examples of likely unreasonable contact:

• Forwarding a non-urgent email "for your information"
• Asking about a meeting scheduled for next week
• Requesting a report that is not due for several days
• Following up on a task that was discussed during working hours

2. How the Contact Is Made and the Level of Disruption

A quick text message is less disruptive than a phone call. An email that sits in an inbox until morning is less disruptive than a push notification that lights up the employee's phone during dinner.

3. Whether the Employee Is Compensated for Being Available

This is a critical factor. If the employee is paid an on-call or availability allowance, or if their employment contract and remuneration package contemplates availability outside ordinary hours, a refusal to respond may be less reasonable.

Many Modern Awards include on-call allowances for employees who are required to be available. Under the Hospitality Award, for example, an employee on call receives a specific allowance. If the employee is receiving this allowance, refusing to answer a call during their on-call period would likely be unreasonable.

4. The Nature of the Employee's Role and Level of Responsibility

Senior employees with management responsibilities may be expected to be more available than junior employees. An employee whose role includes emergency response or critical decision-making may face a higher threshold for what constitutes a reasonable refusal.

5. The Employee's Personal Circumstances

Family responsibilities, caring obligations, health issues, and other personal factors are relevant. An employee who is the sole carer for a young child during evening hours has a stronger case for refusing after-hours contact than an employee with no such obligations.

What Employers Cannot Do

Adverse Action

An employer cannot take adverse action against an employee for exercising (or proposing to exercise) their right to disconnect. Adverse action includes:

• Termination of employment
• Reducing hours or shifts
• Demotion
• Denial of promotion or training opportunities
• Changing duties to the employee's disadvantage
• Any other action that is detrimental to the employee

Taking adverse action because an employee refused unreasonable after-hours contact would be a contravention of the general protections provisions of the Fair Work Act (Part 3-1), carrying significant penalties.

Contractual Override

An employment contract, workplace policy, or enterprise agreement cannot remove or limit the right to disconnect. A clause that says "the employee agrees to be available by phone at all times" does not override the statutory right. Such a clause would be void to the extent it conflicts with section 333M.

However, contracts and awards can create conditions that are relevant to the reasonableness assessment. If a contract includes an on-call component with associated remuneration, that is a factor in assessing whether a refusal to respond is unreasonable.

Practical Compliance Steps

1. Review Your Communication Practices

Audit how and when you contact employees outside of working hours. Common patterns to identify:

• Managers who routinely send emails late at night
• Group messages or WhatsApp chats that are active outside business hours
• Systems that generate notifications or alerts to employees' personal devices
• Client-facing roles where customers contact employees directly on personal numbers

2. Set Clear Expectations

Communicate to all staff:

• What the right to disconnect means
• That employees are not expected to respond to non-urgent communications outside their working hours
• What constitutes urgent contact that may require a response
• How urgent matters should be escalated (e.g., a specific phone number for emergencies, not email)

3. Use Delayed Sending

Most email platforms and messaging tools allow scheduled or delayed sending. If a manager is working late and writes an email, they can schedule it to send at the start of business the next day. This removes the pressure on the recipient to read or respond immediately.

4. Distinguish Between "Sending" and "Expecting a Response"

Some employers adopt a policy that managers may send communications at any time, but employees are not expected to read or respond until their next working period. This works if it is genuinely implemented — if a manager sends an email at 10pm and then follows up the next morning asking why the employee has not responded, the policy is undermined.

5. Update Policies

Create or update your workplace policies to address after-hours contact:

• Define "working hours" for each role
• Establish an escalation process for genuine emergencies
• Confirm that employees are not expected to monitor work communications outside their hours
• Address the use of personal devices for work purposes
• Cover contact from third parties (clients, customers)

6. Review On-Call Arrangements

If you have employees who need to be available outside ordinary hours, make sure:

• On-call arrangements are documented and agreed in writing
• The employee is appropriately compensated (check the on-call allowance provisions in your award)
• On-call rosters are distributed fairly
• The on-call requirements are reasonable in scope

7. Train Managers

Managers need to understand:

• That the right to disconnect is a legal obligation, not a suggestion
• How to assess whether after-hours contact is genuinely necessary
• How to use delayed sending and escalation processes
• That taking adverse action against employees for exercising the right is unlawful

How the Right to Disconnect Interacts with Awards

Several Modern Awards already contain provisions relevant to after-hours contact:

On-Call and Availability Allowances

Awards like the Health Professionals and Support Services Award, the Nurses Award, and the Social and Community Services Award include on-call allowances. These allowances interact with the right to disconnect: an employee receiving an on-call allowance for a specific period can reasonably be expected to respond during that period.

Overtime and Callback Provisions

If an employee is contacted outside working hours and performs work in response, they may be entitled to overtime or callback payments under their award. Most awards specify a minimum payment for being recalled to work (commonly 3-4 hours at overtime rates).

The right to disconnect does not eliminate these entitlements. If an employee chooses to respond to after-hours contact and performs work, they must be paid for it.

Rostering Provisions

Many awards require a minimum notice period for roster changes. The right to disconnect interacts with this: if a roster change notification is sent outside working hours and the employee does not read it until the next working day, the notice period runs from when the employee could reasonably be expected to have seen it.

Dispute Resolution

If a dispute arises about the right to disconnect, either party can apply to the Fair Work Commission for resolution.

The process is:

1. Discussion at the workplace level: The parties should first attempt to resolve the dispute by discussion
2. Application to the FWC: If the dispute is not resolved, either party can apply to the FWC
3. Conciliation: The FWC will attempt to resolve the dispute through conciliation
4. Orders: If conciliation fails, the FWC can make orders

The FWC can order:

• The employer to stop making unreasonable contact
• The employee to respond to reasonable contact
• Any other order the FWC considers appropriate

Contravention of an FWC order is a civil remedy provision under the Fair Work Act, carrying maximum penalties of $18,780 for an individual and $93,900 for a body corporate.

How AirComply Helps

Understanding your obligations under Modern Awards — including on-call provisions, overtime and callback clauses, and rostering rules — is essential for managing the right to disconnect properly. AirComply's tool covers all 155 Modern Awards.

Check your award obligations — free for all awards.

Frequently Asked Questions

Can I still send emails after hours?

Yes. The right to disconnect does not prevent you from sending emails or messages after hours. It gives employees the right to not monitor, read, or respond to those communications until their next working period — unless the refusal is unreasonable.

Does the right to disconnect apply to casual employees?

Yes. Casual employees have the same right to disconnect. However, their "working hours" are the hours of each engagement. Outside those engaged hours, they can refuse to monitor or respond to contact.

What if my business operates across time zones?

This is a practical challenge. An employee in Perth may receive contact from a manager in Sydney at 5pm AEDT, which is 2pm AWST — within the Perth employee's working hours. Conversely, a 7am AEDT message arrives at 4am AWST. Employers with cross-timezone operations should be particularly conscious of timing.

Can an employee waive the right to disconnect?

No. The right to disconnect is a statutory entitlement and cannot be waived by agreement, contract, or policy. A contractual clause purporting to waive the right would be void.

What about employees who work from home and set their own hours?

Employees with flexible or self-directed hours present a grey area. The key is defining what their "working hours" are. If an employee chooses to work from 6pm to 10pm instead of 9am to 5pm, contact during their chosen working hours is not after-hours contact. Clear agreement on working hours is essential.

Are there penalties for breaching the right to disconnect?

An employer who contravenes an FWC order regarding the right to disconnect faces civil penalties of up to $18,780 per contravention for an individual or $93,900 for a body corporate. Taking adverse action against an employee for exercising the right attracts the higher general protections penalties.