The right to disconnect now applies to all Australian private sector employers. For managers and HR teams, the practical challenge is understanding when an employee's refusal to respond to after-hours contact is protected by law — and what to do when it becomes a point of dispute. This article sets out the legal framework, the factors used to assess whether a refusal is unreasonable, and the steps organisations should have in place.

What Australia’s Right to Disconnect Law Means for Employers

The right to disconnect does not prohibit employers from contacting employees outside working hours. What it does is protect employees who choose not to monitor, read or respond to that contact — provided their refusal is not unreasonable.

Under section 333M of the Fair Work Act 2009, employees have the right to refuse to monitor, read or respond to contact or attempted contact from their employer outside their working hours, unless doing so is unreasonable. The right also extends to contact from third parties — such as clients, customers, or suppliers — where that contact relates to the employee's work.

Contact can be made through any communication channel, including phone calls, emails, text messages, social media, and workplace messaging platforms.

Who is covered

The right to disconnect applies to national system employees — in broad terms, private sector employees and Commonwealth Government employees. It does not apply to independent contractors.

The right has applied to employees of non-small business employers since 26 August 2024. For small business employers (those with fewer than 15 employees), the right came into effect on 26 August 2025, completing the scheme's full rollout across all national system employers.

Modern award terms

The Fair Work Commission has added a right to disconnect term to all 155 modern awards, setting out how the right applies across different industries and occupations. Where an enterprise agreement contains a different term about the right to disconnect, that term will generally apply in place of the modern award term. Employers should confirm which instrument applies to their employees and what it provides.

5 Factors to Determine "Unreasonable Refusal" Under the Fair Work Act

Whether an employee's refusal to monitor, read or respond to contact is unreasonable depends on the circumstances. The Fair Work Act does not provide a fixed definition of unreasonable refusal. Instead, it sets out factors that must be considered when making that assessment.

The five factors

Where the contact is not required by law, the following factors must be taken into account when determining whether a refusal is unreasonable:

1. The reason for the contact and its urgency

The nature of the contact and whether a response is genuinely required before the next working day are relevant considerations.

2. How the contact is made and the level of disruption it causes

The method of communication and the extent to which it interrupts or intrudes on the employee's time outside work are taken into account.

3. Any compensation the employee receives for availability or additional hours

Whether the employee receives pay or other compensation for being available outside their ordinary hours, or for working additional hours, is a relevant factor.

4. The employee's role and level of responsibility

The nature of the employee's position and their level of seniority and responsibility within the organisation are considered.

5. The employee's personal circumstances

The employee's personal situation, including family or caring responsibilities, is taken into account.

The Fair Work Act provides that other matters may also be considered. These five factors are the ones the legislation expressly requires to be assessed — they do not produce a fixed outcome, and the weight given to each will depend on the specific circumstances of the case.

When refusal is always unreasonable

There is one circumstance in which an employee's refusal will always be unreasonable: where the contact or attempted contact is required by law. In that case, the employee does not have the right to refuse.

HR Checklist: How Employers Should Respond to After-Hours Disconnection

The right to disconnect does not require employers to introduce a formal policy. However, proactive steps taken before a dispute arises are significantly more effective than reactive responses after one.

1. Confirm which award term applies to your employees

The Fair Work Commission has added a right to disconnect term to all modern awards. The specific wording varies depending on the award and the industry. Where an enterprise agreement is in place, it may contain a different term that applies instead.

Employers should confirm which modern award or enterprise agreement covers each employee group, and review the relevant right to disconnect term to understand what it provides. The Fair Work Commission's award search tool is available at fwc.gov.au.

2. Establish clear expectations through workplace discussion

The Fair Work Commission and the Fair Work Ombudsman both recommend that employers and employees — and where relevant, unions — discuss and agree on expectations around after-hours contact before disputes arise. This does not need to take the form of a formal written policy, but clarity on the following is useful:

• The circumstances in which after-hours contact may be expected — for example, genuine emergencies or roles with on-call requirements

• How such contact will be made and through which channels

• Whether any compensation or allowance applies for availability or after-hours response

Documented expectations reduce the risk of disputes and provide a clearer basis for resolving them if they do arise.

3. Understand how to respond if an employee refuses contact

Where an employee refuses to monitor, read or respond to after-hours contact, the first step is to attempt to resolve the issue through discussion at the workplace level. This is the approach the Fair Work Commission identifies as the appropriate starting point for any right to disconnect dispute.

If workplace-level discussion does not resolve the matter, either the employer or the employee can apply to the Fair Work Commission to deal with the dispute. The Commission has the power to make orders — for example, requiring an employee to stop unreasonably refusing contact, or requiring an employer to stop taking action against an employee in connection with their exercise of the right.

Employers should be aware that taking adverse action against an employee — such as disciplinary action, demotion, or dismissal — because the employee has exercised their right to disconnect is prohibited under the Fair Work Act's general protections provisions.

Penalties for non-compliance with Commission orders

If the Fair Work Commission makes an order in connection with a right to disconnect dispute and that order is contravened, civil penalties may apply. Following the most recent indexation on 1 July 2026, the maximum penalties for contravening a Fair Work Commission order are:

• Body corporate: up to $109,200 (300 penalty units)

• Individual: up to $21,840 (60 penalty units)

The right to disconnect operates on a case-by-case basis. However, the most effective risk management is to confirm which modern award term applies, establish clear expectations with employees before disputes arise, and understand the process if one does.

For advice on specific situations or the drafting of workplace policies, consult a workplace relations specialist.

Official sources:

• Fair Work Ombudsman — Right to disconnect

• Fair Work Commission — Right to disconnect disputes

• Fair Work Ombudsman —　 Find my award

• Australian Financial Security Authority — Penalty units

Last updated: August 2026