Right to Disconnect: What Small Business Owners Actually Need to Know

Key Takeaways

• Employees can refuse to monitor, read or respond to work contact outside their working hours unless the refusal is unreasonable, under s 333M of the Fair Work Act 2009 (Cth).
• You can still send after-hours messages, but you cannot expect or require a response. The law targets the expectation, not the contact itself.
• If you need genuine after-hours availability, pay for it through an on-call allowance or higher base salary — this makes contact more likely to be reasonable.
• The right to disconnect is a workplace right under the general protections regime. Taking adverse action against an employee for exercising it exposes you to significant claims.
• The right to disconnect commenced for large employers on 26 August 2024 and extended to small business employers on 26 August 2025. It now covers all national system employers.
• Most businesses can manage compliance with clear written expectations, sensible after-hours contact habits and manager training.

1. 1.My employee ignored an after-hours message. What are the rules?
2. 2.I need to contact staff after hours sometimes. Is that still allowed?
3. 3.What about shift workers and irregular hours?
4. 4.What counts as an emergency?
5. 5.Does this apply to my business?
6. 6.What happens if an employee makes a complaint?
7. 7.How does this interact with excessive hours obligations?
8. 8.The general protections angle
9. 9.Practical steps to get this right
10. 10.How we help
11. 11.Source material

Your employees can refuse to read, monitor or respond to work contact outside their working hours. That’s been the law for all employers under the Fair Work Act since August 2025.

The short version: You can still send messages, but you can’t expect a reply outside working hours. If you need after-hours availability, pay for it. If someone raises a concern, have a conversation before it becomes a dispute. And if it intersects with a disciplinary process, get advice first. For most small businesses, compliance is a matter of good habits and clear communication rather than a major operational overhaul.

This article walks through the common questions we get from business owners and what to do about each one.

My employee ignored an after-hours message. What are the rules?

Under s 333M of the Fair Work Act 2009 (Cth), an employee can refuse to monitor, read or respond to contact from their employer outside working hours unless the refusal is unreasonable. The same applies to work-related contact from third parties like clients or suppliers.

Whether a refusal is unreasonable depends on five factors that must be considered:

1. The reason for the contact. A genuine emergency carries more weight than a routine question that could wait until morning.
2. How the contact was made and the level of disruption. A phone call at 11pm is more disruptive than an email sent at 6:30pm with no expectation of immediate response.
3. Whether the employee is compensated for availability. If you pay someone an on-call allowance or their salary explicitly compensates them for out-of-hours availability, that shifts the balance in the employer’s favour.
4. The employee’s role and level of responsibility. A CFO managing a funding round has different expectations to a junior admin officer.
5. The employee’s personal circumstances. Family and caring responsibilities are specifically called out in the legislation.

These five factors are not exhaustive. A court or the Commission can consider anything else it thinks is relevant.

In practice, most after-hours contact in a typical small business falls on the reasonable side of the line. The risk area is when employers expect a response as a matter of course or discipline someone for not replying.

I need to contact staff after hours sometimes. Is that still allowed?

Yes. The law doesn’t stop you sending the message. But you should not expect the employee to read or respond to it outside their working hours.

You can still send emails, leave voicemails or post messages in team channels outside business hours. The difference is that the expectation of a response needs to go. For many businesses, a simple cultural shift is all that’s needed: send the email when you think of it, but don’t expect or require a reply until work hours.

Where it gets sharper is if you directly or indirectly pressure someone to respond. The modern award clause (inserted into all 122 modern awards by the Fair Work Commission) specifically says employers must not directly or indirectly prevent an employee from exercising their right to disconnect. That includes things like telling an employee they “must respond” to a specific after-hours message or making it clear through tone or follow-up that non-response will have consequences.

What about shift workers and irregular hours?

The right to disconnect is about contact outside the employee’s “working hours.” That phrase does a lot of work, because working hours look different depending on the role.

Shift workers: If an employee is rostered to work 2pm to 10pm, their “outside working hours” is everything before 2pm and after 10pm. A message at 8am is outside their hours even though it’s a normal business hour for everyone else. Conversely, contacting a night shift worker at 3am while they’re on shift is fine because they’re at work.

On-call and paid standby: If an employee is on a paid on-call arrangement, that changes the reasonableness assessment significantly. Section 333M(3)(c) specifically requires the Commission to consider whether the employee is compensated for remaining available. A properly structured on-call allowance makes after-hours contact far more likely to be reasonable. This is the cleanest way to manage roles that genuinely require out-of-hours availability.

Emergency and essential services: There is no blanket exemption for emergency workers, healthcare staff or essential services. However, the reasonableness factors work in the employer’s favour when genuine urgency exists. A hospital calling a surgeon about a critical patient, or a utilities company calling an engineer about a gas leak, is almost certainly reasonable contact. The key is genuine operational necessity, not just commercial convenience.

The grey area: The difficult cases are roles where after-hours contact has always been culturally expected but never formally compensated. Senior managers who’ve always checked emails on weekends, salespeople who respond to client messages at night. If there’s no on-call clause, no additional compensation and no contractual expectation of availability, these employees can now refuse to respond. If your business depends on that kind of availability, the fix is to formalise it and compensate for it.

What counts as an emergency?

The legislation doesn’t define “emergency” but the reasonableness factors give you a workable framework. Contact is more likely to be reasonable when:

• there is a genuine safety risk to people or property
• a legal or regulatory deadline is about to expire and the employee is the only person who can act
• a critical system failure requires the employee’s specific expertise

Contact is less likely to be reasonable when:

• it’s urgent to you but not objectively urgent (e.g. a client wants a response tonight but there’s no contractual deadline)
• someone else in the team could handle it
• it’s a planning or scheduling matter that could wait

If your business regularly has genuine after-hours emergencies, the better approach is to set up a paid on-call roster with clear expectations in writing. That gives you a defensible position if a dispute ever arises.

Does this apply to my business?

The right to disconnect applies to all employers covered by the Fair Work Act 2009 (Cth). In Queensland, that covers the vast majority of employers including Pty Ltd companies, trading trusts, incorporated associations and most businesses with employees.

A small number of Queensland employers still sit in the state industrial relations system. Whether you’re in the state or national system depends on your business structure and whether it’s a constitutional corporation, not just whether it’s incorporated. If you’re not sure which system covers you, it’s worth getting that threshold question clarified.

The right to disconnect commenced on 26 August 2024 for employers with 15 or more employees and extended to small business employers on 26 August 2025. As of now, it covers all national system employers regardless of size.

What happens if an employee makes a complaint?

An employee can apply directly to the Fair Work Commission. There is no requirement to raise it with the employer first, although in practice most disputes are better resolved through a workplace conversation before they escalate.

The FWC can mediate, conciliate or make binding orders. Those orders could require you to stop contacting the employee outside hours, or could require the employee to stop unreasonably refusing contact. The process works both ways.

If the FWC makes an order and it’s breached, penalties apply: up to $19,800 for an individual and $99,000 for a body corporate (60 and 300 penalty units respectively, at the current $330 per unit).

How does this interact with excessive hours obligations?

The right to disconnect sits alongside existing obligations around reasonable additional hours under the Fair Work Act. Together, they create a broader framework around working time and availability.

The Erudite Legal case (Victorian Magistrates’ Court, 2025) is a stark example of what the outer limits look like. A Melbourne law firm required a junior lawyer to work 12 to 18 hour days (and two 24-hour days) over a three-week period. The firm’s principal directed her to watch the movie Miracle late at night to illustrate a “philosophical point” and texted her throughout to check she was watching. She was paid $1,000 for over 225 hours of work. The court imposed $48,840 in penalties ($22,200 for failing to pay on time, $26,640 for unreasonable hours) plus orders for roughly $8,000 in unpaid wages and superannuation. Magistrate Fawcett described the conduct as “repugnant.”

That’s an extreme case. But the point for ordinary businesses is that the right to disconnect reinforces the same principle that already applied under the excessive hours provisions: employees are entitled to time away from work, and employers who blur that boundary face real consequences.

The general protections angle

The right to disconnect is also a “workplace right” under the general protections regime in Part 3-1 of the Fair Work Act. That means if you take adverse action against an employee because they exercised their right to disconnect, you’re exposed to a general protections claim. Adverse action includes termination, demotion, reduction in hours or any other detrimental treatment.

Martin v Cairns Rudolf Steiner School (QUD148/2025) is the first federal court proceeding to test this. A teacher was terminated after raising the right to disconnect when her employer sent misconduct allegations during school holidays and demanded a response within 8 days. She is claiming $730,000 in lost income and $50,000 for hurt and humiliation.

The takeaway isn’t that employers should be afraid of the law. It’s that the right to disconnect needs to be factored into how you handle performance management and disciplinary processes. If an employee raises it, pause and get advice before taking any further steps.

Practical steps to get this right

Most businesses can manage this with a few sensible adjustments:

1. Audit your after-hours contact habits. Look at your own email and message timestamps for the past month. If you’re routinely sending things at 9pm and expecting responses, adjust the pattern or make it clear no response is expected.

2. Set expectations in writing. You don’t need a 20-page policy. A short written statement covering when after-hours contact might be needed, who the on-call contacts are (if any) and how urgent matters should be escalated is enough. Put it in the employment contract or a standalone policy.

3. Use technology to take the pressure off. Schedule emails to send during business hours. Add an email footer along the lines of “I send emails at times that suit my schedule. There is no expectation to read or respond outside your working hours.” Set up your messaging app to flag messages as urgent only when they genuinely are.

4. Train your managers. The most common breach scenario won’t be a formal directive to respond after hours. It’ll be a manager who sends a follow-up text at 7am because they didn’t get a reply to their 10pm email. Make sure anyone who manages staff understands the boundaries.

5. Pay for availability if you need it. If your business genuinely requires after-hours availability, build it into the compensation package with an on-call allowance or higher base salary. This makes contact more likely to be reasonable and gives you a clear paper trail.

6. Get advice before taking disciplinary action. If an employee raises the right to disconnect during a performance or disciplinary process, that’s the moment to get legal advice before taking any further steps. The Martin v Cairns Rudolf Steiner School case shows exactly why.

How we help

We work with business owners and directors to get the right to disconnect right from the start. That includes drafting after-hours contact policies, structuring on-call arrangements, training managers and advising on specific disputes before they escalate.

If an employee has raised the right to disconnect in the middle of a performance or disciplinary issue, that’s exactly when you need someone in your corner who understands both the employment law and the commercial reality of running a business. We act for employers, and we deal with these issues regularly.

Talk to us about your situation or call (07) 3519 5616.

Source material

• Fair Work Ombudsman – Right to disconnect
• Fair Work Act 2009 (Cth), s 333M
• Fair Work Commission – What is the right to disconnect
• Fair Work Commission – Variation of modern awards to include a right to disconnect
• Martin v Cairns Rudolf Steiner School Ltd (QUD148/2025)
• Erudite Legal – Victorian Magistrates’ Court (2025)

This article is for general information purposes only and does not constitute legal advice. You should seek professional advice tailored to your specific circumstances before acting on any information in this article. Liability limited by a scheme approved under Professional Standards Legislation.