If your phone lights up with work messages at night, on weekends or on your days off, the law now gives you a right to switch off. Under s 333M of the Fair Work Act 2009 (Cth), you can refuse to monitor, read or respond to contact, or attempted contact, outside your working hours, unless your refusal is unreasonable.
What it does not do. The right to disconnect does not make out-of-hours contact unlawful. Your employer (or a client) can still call or message you. What the law protects is your right to refuse to monitor, read or respond, unless refusing would be unreasonable in the circumstances.
When It Started, And Who It Covers
According to the Fair Work Ombudsman, the right has applied:
- from 26 August 2024 for employees of employers with 15 or more employees; and
- from 26 August 2025 for employees of small business employers (fewer than 15 employees, counting associated entities and regular casuals).
So it now applies to all employees in the national (Fair Work) system, whatever the size of their employer. It covers contact from your employer and contact from third parties about your work, such as clients, suppliers or staff of other businesses, by any channel: calls, emails, texts, social media and messaging apps.
The right is in the Fair Work Act, so it applies to national system employees. If you are in the WA state system (for example you work for a sole trader, a partnership, a WA council or the WA public sector), this statutory right does not apply to you, although your WA award or agreement may say something about out-of-hours contact. See Am I in the state or federal system?.
When Is Refusing Unreasonable?
Whether your refusal is unreasonable depends on all the circumstances. The Act lists matters that must be taken into account (s 333M):
- the reason for the contact, for example a genuine emergency compared with something that could wait until the morning;
- how the contact is made and how disruptive it is to you;
- whether and how much you are compensated for being available, or for working extra hours outside your ordinary hours (including non-monetary compensation);
- the nature of your role and your level of responsibility; and
- your personal circumstances, including family or caring responsibilities.
Other matters can also be considered. And a refusal will be unreasonable if the contact is required by law.
How the factors play out. The Fair Work Ombudsman gives two contrasting examples. A consultant with young children, whose flexible hours end at 4 pm, does not need to deal with an urgent client email that arrives while he is on the way to daycare, particularly when a colleague can handle it. By contrast, an employee who is being paid extra to act in a senior role, and who has been told that reasonable out-of-hours contact is part of that pay, may be acting unreasonably if she ignores an urgent call about a major client deadline.
Being paid a higher salary does not automatically remove the right, and being on call does not create a free-for-all: the question is always whether your particular refusal was unreasonable in the circumstances.
Awards, Agreements And Contracts
Every modern award must now include a right to disconnect term (s 149F). If your enterprise agreement gives you a better right to disconnect than the Act does, the agreement's term continues to apply. Your contract cannot take the right away.
It is sensible for you and your employer to talk openly about expectations: when you are and are not expected to be contactable, how genuine emergencies will be handled, and how any on-call time is paid.
If There Is A Dispute
- Try to resolve it at work first. The Act requires the parties to attempt to resolve a dispute about the right to disconnect by discussion at the workplace level (s 333N).
- Apply to the Fair Work Commission. If that does not work, either side can ask the Fair Work Commission to deal with the dispute, using Form F92. The Commission can make an order to stop your employer taking disciplinary or other action against you for a refusal that was not unreasonable, or to stop it continuing to require you to respond (or, if your refusal was unreasonable, an order stopping you from continuing to refuse). It cannot order anyone to pay money, and it must start dealing with an application for an order within 14 days (s 333P). Breaching an order is a civil remedy contravention (s 333Q).
Protection From Being Punished
Your right to disconnect is a workplace right under the general protections in the Fair Work Act. Your employer must not dismiss you, demote you, cut your shifts or take other adverse action against you because you exercised it. If that happens, you may have a general protections claim. If you have been dismissed, the time limit is only 21 days from the day the dismissal took effect. For what to do if you are being pressured to respond after hours, see also the right to disconnect in our problems at work section.
How We Can Help
We can advise you on whether a refusal is likely to be reasonable in your situation, help you raise the issue with your employer, and represent you in the Fair Work Commission or in a general protections claim. For employers, we can help you draft a sensible out-of-hours contact policy. Contact us for a free confidential discussion.