The right to disconnect is the legal right of an employee to refuse to monitor, read or respond to work contact outside their working hours, unless that refusal is unreasonable. It sits in section 333M of the Fair Work Act 2009 (Cth), and since 26 August 2025 it covers small business employers too.
If you run a small team, this is the bit that worries owners most: can you still text someone to cover a shift? Yes, you can. The law doesn’t ban you from making contact. It protects your employee’s right to not answer when the contact isn’t reasonable, and it stops you punishing them for it. That’s a smaller change than the headlines suggested, but getting it wrong still lands you in front of the Fair Work Commission.
- The right to disconnect now covers every Australian employer. It started for businesses with 15 or more staff on 26 August 2024, and for small businesses (under 15 employees) on 26 August 2025.
- It doesn’t stop you contacting staff. It gives employees the right to not respond out of hours when refusing is reasonable. You can still send the message.
- “Reasonable” is decided on five factors. Section 333M(3) weighs the reason for contact, how disruptive it is, whether the employee is paid to be available, their role, and their personal circumstances.
- The right is a protected workplace right. Taking adverse action against someone for using it (a sacking, a demotion, a skipped promotion) can breach the general protections.
- A policy plus a contract clause is the fix. Define working hours, say when after-hours contact is expected, and pay for availability you genuinely need.
What is the right to disconnect?
Under the right to disconnect, an employee can refuse to monitor, read or respond to contact (or attempted contact) outside their working hours, unless the refusal is unreasonable. That contact can come from you as the employer, or from a third party like a client or supplier, as long as it relates to their work.
It came in through the Closing Loopholes reforms and sits in Division 6 of the Fair Work Act 2009 (Cth), at sections 333M to 333Q. Before this, there was no general federal right to switch off. An employee who ignored a boss’s 10pm email was had only goodwill to rely on.
The right controls whether an employee has to respond. Your ability to contact them doesn’t change. You can send the email. They may be within their rights to leave it until morning. Where the line falls depends on whether their refusal is reasonable.
When did the right to disconnect start for small businesses?
For small business employers, the right to disconnect started on 26 August 2025. A small business here means one with fewer than 15 employees. Larger employers have been covered a year longer, since 26 August 2024.
That one-year gap trips people up. Plenty of small business owners read the 2024 coverage and assumed it didn’t touch them. It does now. If you’ve got a team of six and you’ve been messaging them on weekends without a second thought, the rules changed under you in August 2025.
| Employer size | Right to disconnect applies from |
|---|---|
| 15 or more employees (non-small business) | 26 August 2024 |
| Fewer than 15 employees (small business) | 26 August 2025 |
There’s a second layer most owners miss. The right also lives in modern awards. Every modern award was varied on 23 August 2024 to include a right to disconnect term, so if your staff are award-covered, the obligation reaches you through the award as well as the Act. For a refresher on how awards set your baseline, see our guide to modern awards and how they work.
Can I still contact my staff after hours?
Yes. The right to disconnect does not ban out-of-hours contact. You can call, text or email an employee whenever you need to. What changed is their side of it: they can choose not to engage until their next shift, and you can’t treat them badly for that choice, unless refusing was unreasonable.
This is where the panic is overblown. A reasonable business that contacts staff for real reasons, pays for genuine on-call time, and doesn’t expect instant replies to non-urgent weekend messages has very little to worry about. The owners who get caught are the ones who treat “always on” as the default and lean on people who aren’t paid for it.
The useful question is this: if they don’t reply, would their refusal be reasonable? Answer that honestly before you hit send, and you’ll rarely put a foot wrong.
When is an employee’s refusal reasonable (or not)?
An employee’s refusal is reasonable unless the circumstances make it unreasonable, and section 333M(3) sets out the factors that decide it. There are five, and no single one wins on its own. You weigh them together.
- The reason for the contact. A genuine emergency carries far more weight than a routine question that could wait.
- How the contact is made and how disruptive it is. A midnight phone call is far more disruptive than a scheduled email the employee can open when they choose.
- Whether the employee is paid to be available. An on-call allowance or availability loading changes the picture. If you pay for access, refusing is harder to justify.
- The employee’s role and level of responsibility. More is expected of a salaried manager than a casual junior.
- Their personal circumstances. Family and caring responsibilities count here.
One rule is absolute: a refusal is always unreasonable if the contact is required by a law of the Commonwealth, a state or a territory. Outside that, it’s a balancing act. The table below shows how the same five factors land across situations a small business actually faces.
| Situation | Refusal likely reasonable? | Why |
|---|---|---|
| A 9pm email to a casual about next week’s roster, no on-call pay | Yes | Low urgency, junior role, no compensation to be available. It can wait for their next shift. |
| A 7am text asking a salaried duty manager to open up because a staff member is sick | Often no | Real operational need, senior role, small disruption, short notice. Responding is reasonable to expect. |
| A call during an on-call window to an employee paid an on-call allowance | No | They are compensated to be available. That’s what the allowance buys. |
| A late-night message to an employee with young kids about a task that can wait | Yes | Caring responsibilities plus no urgency weigh heavily toward a reasonable refusal. |
| A genuine safety incident or data breach, contacting the responsible employee | No | The reason for contact is urgent and serious. Refusing to engage would usually be unreasonable. |
The pattern is simple. Pay and role push toward “you have to respond”. Low urgency and caring responsibilities push toward “leave it till morning”. When you’re unsure, look at whether you’ve paid for the availability you’re expecting. That single factor settles most close calls.
What happens if you get the right to disconnect wrong?
The right to disconnect is a protected workplace right under the general protections in the Fair Work Act. There’s no fine for sending a text. The real exposure is an adverse action claim if you punish someone for reasonably refusing contact.
Adverse action is broad. Sacking someone is the obvious one, but so is cutting their shifts, demoting them, or quietly passing them over for a promotion because they don’t jump when you message at night. If an employee can show that’s why you acted, you’re defending a general protections claim, and in those the onus can fall on you to prove the real reason.
Disputes run in a set order. First, the employee and employer try to sort it at the workplace. If that fails, either side can take it to the Fair Work Commission, which can make orders. The Commission can order an employee to stop unreasonably refusing contact, or order an employer to stop requiring responses where refusal was reasonable. Breaching one of those orders is where civil penalties start to bite.
Keep two bodies straight, because owners mix them up. The Fair Work Ombudsman gives guidance and helps with enquiries. The Fair Work Commission is the tribunal that hears the dispute and makes the orders. If a sacking is tangled up in it, that becomes an unfair dismissal or general protections matter, which runs through the Commission on a tight 21-day clock. When it reaches that point, talk to an employment lawyer early.
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The misreads that get small businesses in trouble
Most of the trouble here comes from good employers acting on a wrong assumption. These are the four most common.
“It bans me from contacting my team.” It doesn’t. You can contact anyone, anytime. The right only governs whether they must respond, and whether you can penalise them for not. Owners who believe contact itself is banned either over-correct and stop communicating, or ignore the law entirely because it sounds absurd. Both reactions miss the point.
“A policy on the wall sorts it.” A policy helps, but on its own it’s half the job. If your employment contracts still imply staff are always reachable, or you expect after-hours availability you don’t pay for, a policy document won’t save you. The policy and the contract have to say the same thing.
“Casuals aren’t covered.” They are. The right applies to casuals, including labour-hire casuals, the same as it applies to permanent staff. You can’t write an “always available” term into a casual employment agreement and expect it to override the right. A casual can decline a shift and decline to answer a non-urgent out-of-hours message both.
“I can contract out of it.” You can’t contract below it. An enterprise agreement can offer a more generous right to disconnect, and that better term stands. What you can’t do is use a contract clause to strip the right away. What a contract can do is set clear working hours and genuine on-call arrangements, which shapes what counts as reasonable.
What should your business actually do?
You don’t need a compliance project. For a small team, five moves cover it, and you can knock most of them over in an afternoon.
- Put a right to disconnect policy in place. Set out what counts as working hours, when after-hours contact is expected, and how urgent matters get flagged. A right to disconnect policy template gives you the structure so you’re not drafting from a blank page.
- Align your employment contracts. Make sure your employment agreements define ordinary hours and spell out any genuine on-call or availability expectation. A policy that contradicts the contract helps no one.
- Pay for the availability you need. If a role genuinely needs after-hours responsiveness, build in an on-call allowance or overtime. Paying for access is the strongest thing you can do to make a refusal unreasonable when it matters.
- Brief your managers. The people who text the team at night need to know two things: don’t expect instant replies to non-urgent messages, and never punish someone for reasonably not responding. Scheduled-send and a quick “no rush” line solve most of it.
- Handle any dispute at the workplace first. If someone raises it, talk it out before it escalates. The law expects a workplace-level attempt before the Fair Work Commission gets involved, and most issues die right there.
These obligations arrived as part of a much bigger package. If you want the wider picture on what changed for employers, read our explainer on the Closing Loopholes Fair Work changes, and brush up on the baseline every employee is owed in our guide to the National Employment Standards.
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Frequently asked questions
Does the right to disconnect apply to small businesses?
Yes. Since 26 August 2025, the right to disconnect applies to small business employers, meaning those with fewer than 15 employees. Larger employers have been covered since 26 August 2024. There is no exemption for small teams.
Can I still contact my employees after hours?
Yes. The right to disconnect doesn’t stop you making contact. It gives employees the right to not respond outside working hours where refusing is reasonable, and it stops you taking adverse action against them for it. You can send the message; they may not have to answer it.
Can an employee refuse to answer in an emergency?
Rarely. The reason for contact is one of the five factors in section 333M(3), and a genuine emergency weighs heavily against a reasonable refusal. A safety incident or urgent operational problem is usually something the responsible employee is expected to engage with.
Does the right to disconnect cover casual employees?
Casuals are covered, including labour-hire casuals, the same as permanent staff. You can’t use a casual contract to require constant availability and expect it to override the right. A casual can decline both a shift and a non-urgent out-of-hours message.
What are the penalties for breaching the right to disconnect?
There’s no automatic fine for contacting staff. The risk is a general protections claim if you take adverse action against someone for reasonably refusing, and civil penalties if you breach a Fair Work Commission order about out-of-hours contact. Disputes go to the Commission, not the Ombudsman.
Do I need a right to disconnect policy?
No law forces you to have one, but it’s the clearest way to manage expectations and reduce dispute risk. A short policy that defines working hours, sets out when after-hours contact is expected, and aligns with your employment contracts does most of the work.
Can I put an “always available” clause in a contract?
No. You can’t contract below the right to disconnect. A contract can define ordinary hours and set up genuine, paid on-call arrangements, which affects what’s reasonable. It can’t strip the right away. An enterprise agreement can only offer a more generous version, not a weaker one.
Where to start
If you’ve read this far and felt a flicker of “we’ve been doing this wrong”, relax. Most small businesses were. The right to disconnect is new for small teams, the rules are reasonable once you see them, and nobody expects you to have rebuilt your workplace overnight. You’re not behind.
The single most useful thing you can do today is get a policy in place so everyone knows where the line sits. Set up your Right to Disconnect Policy with Lawpath and have it sorted in minutes.
