Lawyers-au.com 
Since 26 August 2024, employees at non-small businesses in Australia have had a legal right to refuse to monitor, read, or respond to contact from their employer — or contact related to their work — outside of their ordinary working hours. Since 26 August 2025, that right extended to employees of small businesses (fewer than 15 employees). This is section 333M of the Fair Work Act 2009 (Cth) — and it is widely misunderstood by both employers and employees. It does not mean you can never be contacted outside hours. It does not give you an absolute right to ignore everything. What it gives you is the right to refuse contact that is unreasonable — and a framework for challenging employer conduct when they penalise you for exercising that right. Here is exactly how it works.
26 Aug 2024
Large employers (15+ employees)
26 Aug 2025
Small businesses (under 15)
s 333M
Fair Work Act 2009
$19,800
Max penalty for employer breach
📋 Laws and Official Sources
- Fair Work Act 2009 (Cth) — sections 333M–333T (right to disconnect) — Federal Register of Legislation
- Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 — inserted right to disconnect provisions
- Fair Work Ombudsman — Right to disconnect — fairwork.gov.au
- Fair Work Commission — Right to disconnect disputes
What the Right to Disconnect Actually Gives You
Section 333M of the Fair Work Act 2009 creates a workplace right — the right to disconnect. Specifically:
An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer or a third party if the contact or attempted contact is outside of the employee’s working hours — unless the refusal is unreasonable.
Three components matter here. First, the right applies to contact or attempted contact — emails, texts, calls, Teams messages, Slack notifications, WhatsApp — any channel. Second, the right applies to contact from the employer and third parties (clients, customers, contractors) if that contact is related to the employee’s work. Third, the right exists unless — and this is the crucial qualifier — the employee’s refusal is unreasonable.
The right is a workplace right within the meaning of the Fair Work Act’s general protections provisions (Part 3-1). This means that an employer who takes adverse action against an employee for exercising the right to disconnect — demoting them, cutting their hours, changing their duties, dismissing them — commits a general protections breach. That is a separate and serious legal exposure, independent of the right itself.
The right to disconnect does not prohibit employers from contacting employees outside working hours. It does not require employers to implement specific communication policies. It does not mean every after-hours email is automatically unlawful. What it does is give the employee a legal basis to refuse to respond — and protection against being penalised for that refusal — when the contact is unreasonable in the circumstances.
What Makes Contact “Unreasonable”?
The Fair Work Act sets out the factors the Fair Work Commission (FWC) must consider when determining whether an employee’s refusal to respond was unreasonable. These same factors implicitly define when contact itself is unreasonable — because unreasonable contact is what the right is designed to address.
| Factor | What the FWC Considers | Examples Pointing Each Way |
|---|---|---|
| Reason for contact | Why was the contact made? How urgent was it? | Urgent: system outage affecting operations. Not urgent: non-time-sensitive project update that could wait until morning. |
| Method and disruption | How was the contact made? Did it disrupt the employee? | A 10pm phone call is more disruptive than an email the employee can read in the morning. Repeated messages over an hour are more disruptive than one. |
| Whether employee is compensated | Is the employee paid for being on call or available after hours? Does their role include availability expectations? | A salaried senior manager with an “availability” component in their package is treated differently from a retail casual worker. |
| Employee’s role and level of responsibility | Does the role inherently involve after-hours responsibility? | An on-call IT engineer, a senior executive with operational responsibility, or a first-aider whose duties include emergency response. |
| Employee’s personal circumstances | Does the employee have caregiving responsibilities, a disability, or other circumstances that make after-hours contact particularly burdensome? | A parent of young children contacted during school pickup, or an employee with a documented sleep disorder being contacted at 11pm. |
The assessment is contextual — no single factor is determinative. A pattern of late-night emails that individually seem minor can collectively be found unreasonable. A single call at 10pm during a genuine operational crisis may be reasonable. The FWC exercises discretion, which means consistent, documented patterns of after-hours contact are more likely to be found unreasonable than isolated incidents.
What the Right Does Not Cover
The right to disconnect has real limitations. Understanding them prevents employees from overestimating their protection and prevents employers from dismissing the right as unworkable:
- It does not apply during working hours. The right to disconnect only applies to contact made outside of the employee’s working hours. If you are on a late shift or working overtime, contact during that period is not subject to the right.
- It does not override genuine on-call arrangements. If an employee’s employment agreement or modern award includes a paid on-call arrangement — where the employee is specifically compensated for availability — the right to disconnect operates differently. The employee’s availability obligation during the on-call period is part of their contracted work. However, unreasonable demands even within an on-call arrangement can still be challenged.
- It does not prevent the employer from sending contact. The employer can still send emails, messages, or make calls after hours. The law does not prohibit the employer from doing so — it protects the employee from being required to respond.
- It does not create a right to additional pay for responding. The right to disconnect is a right to refuse to respond. Employees who choose to respond after hours are not automatically entitled to extra pay under the right to disconnect provisions — though other provisions (like overtime entitlements under their award) may apply.
- It does not apply to independent contractors. The right to disconnect is a Fair Work Act provision covering employees — not contractors. Independent contractors who wish to limit after-hours engagement must do so through their contract terms.
Employer Obligations Under the Law
The right to disconnect does not impose specific prescriptive obligations on employers — unlike, say, work health and safety laws that require documented policies and risk assessments. However, employers face three clear requirements:
- Do not take adverse action against employees for exercising the right. This is the most critical obligation. If an employee reasonably refuses to respond to an after-hours call and their manager responds by criticising them in their performance review, reducing their hours, or terminating their employment, the employer has committed a general protections breach. The employee can bring a claim within 21 days of the adverse action.
- Do not unreasonably require employees to respond to after-hours contact. If the FWC finds that the employer’s contact was unreasonable in the circumstances, the FWC can make orders directing the employer to stop — including orders against specific individuals (managers) as well as the company.
- Consider the right in workplace policies and expectations. While not legally required to have a formal right-to-disconnect policy, employers who build the right into their working culture — setting expectations about after-hours contact, training managers, updating employment contracts — are better positioned to demonstrate compliance and avoid disputes.
Employer Facing a Right-to-Disconnect Dispute? Employee Being Penalised?
Whether you’re an employee whose right to disconnect has been ignored — or an employer navigating what you can and cannot expect of your team after hours — an employment law solicitor can assess your position and advise on your next steps.
Penalties for Breaching the Right
Breaches of the right to disconnect are enforced through the Fair Work Commission and, ultimately, the Federal Court or Federal Circuit Court. The penalty framework operates on two levels:
| Breach Type | Who Can Be Penalised | Maximum Penalty |
|---|---|---|
| Contravening an FWC order made under the right to disconnect provisions | The employer (company) | $93,900 per contravention (600 penalty units) |
| Contravening an FWC order (individual, e.g. a manager) | The individual who contravened the order | $19,800 per contravention (100 penalty units) |
| Taking adverse action against an employee for exercising the right (general protections breach) | The employer; potentially individual managers involved in the decision | Up to $93,900 per contravention (employer); $19,800 (individual); plus compensation for the employee |
Critically, the penalties above apply to contravening FWC orders — not for making after-hours contact in the first place. The enforcement path runs through the FWC: the employee files a dispute, the FWC attempts conciliation, and if the parties cannot agree, the FWC makes orders. Contravening those orders triggers the penalty regime.
If you are dismissed, demoted, or otherwise penalised for refusing to respond to after-hours contact, you must file a general protections application with the Fair Work Commission within 21 days of the adverse action. This is a hard deadline — courts have very limited discretion to extend it. If you believe you have been penalised for exercising the right to disconnect, seek legal advice immediately.
How Disputes Are Resolved: The FWC Process
When a dispute arises under the right to disconnect provisions — either an employee claiming their right has been breached, or an employer claiming an employee’s refusal is unreasonable — the matter goes to the Fair Work Commission.
The process:
- Application to FWC. Either party can apply to the FWC for a determination. The application sets out the nature of the dispute — typically either “the employer is requiring me to respond to unreasonable after-hours contact” or “the employee’s refusal to respond is unreasonable.”
- Conciliation. The FWC will first attempt to resolve the dispute through conciliation — a facilitated discussion between the parties. Most disputes resolve at this stage. Conciliation is quick, informal, and confidential.
- FWC Orders. If conciliation fails, the FWC can make a binding order — for example, ordering the employer to stop contacting the employee after hours except in genuine emergencies, or ordering the employee to respond to certain categories of contact. These orders can name individuals (managers) as well as the company.
- Penalty proceedings. If an order is made and subsequently contravened, the aggrieved party can apply to the Federal Court or Federal Circuit Court for civil penalty orders.
Before approaching the FWC, gather evidence of the after-hours contact — screenshots of messages, call logs, email timestamps. Note dates, times, what you did in response, and any conversation with your employer about the contact. If you were verbally told that responding outside hours was expected, document that conversation in a contemporaneous note. Evidence matters significantly at conciliation and in any hearing.
Enterprise Agreements and Modern Awards
The right to disconnect is a legislated minimum — a National Employment Standard (NES) equivalent. Enterprise agreements and modern awards can include provisions that supplement or further define the right, but they cannot remove it. Any term in an enterprise agreement or award that purports to extinguish the right to disconnect would be unenforceable to that extent.
Modern awards are being progressively reviewed to include right-to-disconnect terms that reflect industry-specific context. Some awards already included reasonable overtime and contact-after-hours provisions — those provisions now operate alongside the statutory right. Where an award or enterprise agreement imposes a clearer or more protective standard than the statutory minimum, that standard applies.
For workers covered by enterprise agreements with specific on-call provisions, shift allowances, or emergency contact arrangements, the interaction with the right to disconnect requires careful analysis. If your employer argues that your enterprise agreement permits after-hours contact as a term of your employment, and you believe those terms do not lawfully displace your right to disconnect, an employment law solicitor can assess the interaction.
Small Business: Your Rights from August 2025
The right to disconnect extended to small business employees — those employed by businesses with fewer than 15 employees — on 26 August 2025. The 12-month delay was intended to give small businesses time to adjust their management practices and communication expectations.
The substance of the right is identical for small business employees. The same “unreasonable contact” test applies; the same FWC dispute resolution process is available; the same general protections against adverse action apply.
Small business employers who were not aware of the 2025 extension should review their after-hours communication practices immediately. The FWC has published guidance material specifically for small businesses, including practical templates for updating employment agreements and workplace policies. A solicitor can also help small business owners understand what changes are needed and how to implement them.
Real-World Scenarios: Reasonable vs Unreasonable
The following scenarios illustrate how the “unreasonable contact” test is likely to be applied in practice. These are examples for guidance — the FWC’s assessment is always fact-specific.
| Scenario | Likely Assessment | Key Reason |
|---|---|---|
| Manager emails employee at 9pm asking for a non-urgent report update needed by the next afternoon | Refusal to respond is reasonable | No urgency; no reason the request could not wait until next morning; email can be read at work. |
| IT team member receives emergency call at 11pm — critical system failure affecting hospital operations | Refusal to respond may be unreasonable | Genuine emergency; IT role involves operational continuity; significant harm if not addressed. If the employee is paid for on-call, refusal is more likely unreasonable. |
| Retail casual employee receives 9pm text asking whether they can swap a shift next week | Refusal to respond is reasonable | Not urgent; casual employee with no on-call obligation; low-level role with no responsibility for business continuity. |
| Senior project manager receives 8pm call from overseas client about a contract issue — manager has a specific bonus tied to the account and routinely manages international client contact | May be borderline — likely reasonable for client to contact, depends on specifics | Role involves international contact; compensation reflects availability expectations; but the regularity and nature of the contact matters. If this happens nightly, pattern may be found unreasonable. |
| Employee is on approved annual leave and receives repeated work-related emails from their manager | Refusal to respond is strongly reasonable | Employee is on leave. Leave is working-hours status — the employee is not “outside working hours” in the sense of the end of a shift; they are on a continuous period of leave entitlement. Contact during leave is an additional concern under Fair Work Act leave provisions. |
| On-call nurse is called at 2am about a patient emergency during their rostered on-call shift | Refusal to respond is unreasonable | The on-call arrangement is part of their contracted role; they are compensated for availability; a patient emergency is the precise purpose of the on-call arrangement. |
Frequently Asked Questions
When did the right to disconnect start in Australia?
The right to disconnect commenced on 26 August 2024 for employees at non-small businesses (employers with 15 or more employees). It extended to small business employees (employers with fewer than 15 employees) on 26 August 2025. The right was inserted into the Fair Work Act 2009 as sections 333M–333T by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.
Can I be fired for refusing to answer emails after hours?
No — not lawfully, if your refusal was reasonable in the circumstances. Dismissing or otherwise penalising an employee for exercising the right to disconnect is adverse action under the Fair Work Act’s general protections provisions. If you are dismissed for refusing unreasonable after-hours contact, you can file a general protections application with the Fair Work Commission within 21 days of the dismissal. A successful application can result in reinstatement, compensation, or both.
Does the right apply to my phone being on after hours?
The right applies to monitoring, reading, or responding to contact — not to merely having your phone on. You are not required to turn off your phone outside working hours, and your employer cannot compel you to do so (or to leave it on). The right activates when contact is made and you are faced with the choice of whether to respond. You can choose to ignore after-hours contact without any obligation to explain or justify yourself, provided your refusal is not unreasonable.
What if my employment contract says I must be available after hours?
Employment contracts and enterprise agreements cannot lawfully exclude the right to disconnect — it is a legislated minimum. A contract term that says “the employee must respond to all work communications within 30 minutes regardless of time of day” cannot override the statutory right. However, a contract that includes a genuine, compensated on-call arrangement — where the employee is specifically paid for availability — will be relevant to the FWC’s assessment of whether a refusal is unreasonable in the context of that arrangement.
How do I make a right-to-disconnect complaint?
File a dispute application with the Fair Work Commission at fwc.gov.au. There is no filing fee. The FWC will contact both parties and attempt to resolve the matter through conciliation. If conciliation fails, the FWC can make a formal determination. Before lodging, document the after-hours contact you have received (dates, times, method, content), note how you responded or did not respond, and record any employer reaction to your refusal. This evidence will be used at conciliation.
Does the right apply to casual employees?
Yes. The right to disconnect under section 333M applies to all employees — full-time, part-time, and casual — who work for a national system employer. Casual employees have no obligation to be available for work on a general basis, and contact outside their rostered shifts is subject to the right to disconnect. A casual employee asked to respond to work messages during hours they are not rostered to work can refuse unreasonable contact.
What should employers do to comply with the law?
Employers should: review their current communication culture and expectations around after-hours contact; update workplace policies to reflect the right to disconnect and define what constitutes an emergency or urgent situation warranting after-hours contact; train managers on the right and on the prohibition against adverse action; review employment contracts for any provisions that purport to require constant availability; and establish a clear dispute resolution process for right-to-disconnect complaints. Employers who build the right into their culture proactively face fewer disputes and less legal exposure.
Does the right to disconnect cover contact from clients or customers?
Yes — explicitly. Section 333M applies to contact from the employer and to contact from third parties (clients, customers, contractors, other organisations) if the contact is made in connection with the employee’s work. An employee who receives a client call at 10pm can refuse to respond under the same framework that applies to employer contact, provided the refusal is reasonable in the circumstances.
A Right That Requires You to Actually Use It
The right to disconnect does not enforce itself. An employee who consistently responds to every late-night email — without ever asserting the right — is not building a legal case; they are establishing a pattern of availability that could be used to argue that after-hours contact is a feature of their role. Exercising the right requires a deliberate choice not to respond, when the contact is unreasonable, and the confidence to maintain that position if the employer pushes back.
That is where the law’s real protection lies: not in the FWC’s ability to fine employers after the fact, but in the protection against adverse action that makes it safer for employees to actually say no. Whether that protection is sufficient in practice — whether employees in precarious roles feel genuinely free to exercise the right without fear — is a legitimate policy question. What the law provides is the legal architecture. What you do with it is up to you.
Right to Disconnect Dispute? Get Legal Advice Now.
The 21-day deadline for adverse action claims is absolute. If you have been penalised for not responding to after-hours contact, or if you are an employer facing a dispute, an employment law solicitor can advise you before the window closes.
Sources
- Fair Work Act 2009 (Cth), ss 333M–333T (right to disconnect), Part 3-1 (general protections) — Federal Register of Legislation
- Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 — Federal Register of Legislation
- Fair Work Ombudsman — Right to disconnect — fairwork.gov.au
- Fair Work Commission — Right to disconnect dispute information — fwc.gov.au
This article provides general information only and is not legal advice. The right to disconnect provisions are relatively new law — Fair Work Commission decisions interpreting the “unreasonable contact” standard are still developing. Legislative references and penalty amounts were current as at August 2026. For advice about your specific employment situation, consult a qualified employment law solicitor. For urgent adverse action matters, note the 21-day filing deadline with the Fair Work Commission.