From 26 August 2024, employees at large Australian businesses gained a legal right to refuse to monitor, read, or respond to contact from their employer outside of work hours โ unless that refusal is unreasonable. From 26 August 2025, the same right extended to employees at small businesses.
This change, introduced through amendments to the Fair Work Act 2009 (Cth), represents one of the most significant shifts in Australian workplace law in recent years. It recognises what many employees have long experienced: the boundary between work and personal life has blurred, and that blurring has real costs to health, wellbeing, and productivity.
But the right to disconnect isn’t a blanket prohibition on after-hours contact. And when employers and employees disagree about whether a refusal was reasonable โ or whether contact crossed the line โ there is a formal dispute resolution process to follow. Mediation sits at the heart of that process.
What the Right to Disconnect Actually Means
Under the amendments to the Fair Work Act, an employee may refuse to:
- Monitor work-related communications (emails, calls, messages) outside their ordinary working hours
- Read such communications outside their ordinary working hours
- Respond to those communications outside their ordinary working hours
This applies unless the refusal is “unreasonable.” The Fair Work Act identifies several factors that are relevant to determining whether a refusal is unreasonable, including:
- The reason for the contact
- The nature of the employee’s role and their level of responsibility
- Whether the employee is compensated for being available or for working additional hours
- The impact of the contact or the refusal on the employer or other parties
- Personal circumstances of the employee (including family or caring responsibilities)
Importantly, the right does not prevent employers from making contact โ it gives employees the right to refuse to respond. The Fair Work Ombudsman has published guidance on how the right applies in practice.
What Counts as “Unreasonable” Refusal?
This is the critical question that drives most right to disconnect disputes โ and the one where context matters most. There is no definitive list of what constitutes an unreasonable refusal. The assessment is contextual and will be made by the Fair Work Commission (FWC) on a case-by-case basis.
However, the Fair Work Act provides a framework. The following factors are relevant to determining whether a refusal to respond is unreasonable:
The reason for the contact. If the employer is contacting an employee because of a genuine emergency โ a data breach, a safety incident, a critical client escalation โ refusing to respond may be unreasonable. Routine follow-up on a non-urgent matter at 10pm on a Sunday is a different situation entirely.
The nature of the role. Senior managers, executives, and those in roles with inherent on-call expectations โ such as IT operations, emergency services contractors, or hospital administrators โ are in a different position from frontline staff or junior employees. The FWC will consider whether after-hours availability is a genuine and understood part of the role.
Compensation for availability. If an employee receives an allowance, higher base salary, or other remuneration specifically to compensate for after-hours availability, this weighs in favour of a refusal being unreasonable. Conversely, if no such compensation is provided, the expectation of after-hours response becomes harder to justify.
The method and urgency of contact. A phone call at midnight from a direct manager differs from a non-urgent Slack message. The FWC will consider whether the method and timing of contact was proportionate to the urgency of the matter.
The employee’s personal circumstances. Caring responsibilities, health conditions, and other personal factors are explicitly included in the assessment framework. An employee with young children or a health condition that requires rest may have stronger grounds for declining after-hours contact.
The size and operational context of the business. A small business with fewer resources and fewer staff may have a more legitimate claim that certain employees need to be contactable outside hours than a large organisation with a substantial workforce.
Safe Work Australia provides guidance on the psychosocial risks of always-on work culture at safeworkaustralia.gov.au. These risks โ including burnout, anxiety, and impaired recovery โ are part of the broader work health and safety context in which right to disconnect disputes arise.
Small Business vs Large Business: Key Differences
The right to disconnect applied to large business employees from 26 August 2024, and was extended to small business employees from 26 August 2025. Under the Fair Work Act, a “small business employer” is one with fewer than 15 employees.
There is no substantive difference in the right itself โ it applies equally regardless of employer size. However, the practical application differs in several ways:
Operational dependency. In a small business, individual employees often carry more operational responsibility and may be genuinely harder to replace in an emergency. The FWC is likely to take this into account when assessing whether a refusal was unreasonable in a small business context.
Policy sophistication. Large businesses typically have more formal HR policies, employment contracts, and communication protocols. Small businesses may be operating with minimal documentation, which can create ambiguity about what after-hours expectations actually exist.
Dispute resolution capacity. A large business will generally have an internal HR team or EAP to assist with disputes before they reach the FWC. Small business owners may be dealing directly with their employees without that support infrastructure โ making early access to mediation particularly valuable.
Cost sensitivity. The cost of FWC proceedings โ even as a respondent โ can be disproportionate for a small business. Resolving a right to disconnect dispute through workplace mediation is significantly cheaper and faster.
FWC Stop Orders and Civil Penalties
If a right to disconnect dispute cannot be resolved at the workplace level and is referred to the Fair Work Commission, the Commission has the power to make orders.
Stop orders
The FWC can make a stop order directed at either party:
- An order requiring an employee to stop unreasonably refusing contact from the employer
- An order requiring an employer to stop taking adverse action against an employee for exercising their right to disconnect
Stop orders are enforceable. Contravening a stop order without a reasonable excuse is a civil penalty provision โ meaning the party in breach can face significant financial penalties.
Civil penalties
As of the time of writing, the civil penalty for a contravention of an FWC stop order can be substantial โ the maximum penalties for individuals and corporations under the Fair Work Act are significant and should not be underestimated. Visit fairwork.gov.au or fwc.gov.au for current penalty amounts.
Adverse action protection
An employee who exercises their right to disconnect is protected from adverse action by their employer. If an employer takes action โ including dismissal, demotion, reduction in hours, or change of duties โ that is causally connected to an employee’s exercise of their right to disconnect, the employer may face an adverse action claim under the general protections provisions of the Fair Work Act.
This protection is significant. It means that simply complying with the law and refusing to respond to after-hours contact should not put an employee’s job at risk.
Employer Obligations: Policy and Practical Steps
The right to disconnect creates practical obligations for employers beyond mere compliance. Businesses should be proactively addressing this in their policies and management practices.
Update your policies
Employment contracts, workplace policies, and enterprise agreements should be reviewed to ensure they do not contain terms that are inconsistent with the right to disconnect. Policies that create an implicit obligation to respond to after-hours contact โ or that describe after-hours responsiveness as a performance expectation โ may need to be updated.
Clarify legitimate expectations
Businesses should clearly document which roles carry genuine after-hours expectations and the basis for those expectations (including any additional compensation). This provides clarity for both employees and managers and reduces the risk of disputes arising from ambiguity.
Train managers
Managers need to understand the right to disconnect and what it means practically. Many disputes in this area arise because managers are not aware of the legal position โ they assume that sending a message outside hours is inherently acceptable and that employees are obliged to respond. Training on what the right means, and how to communicate expectations in a legally compliant way, reduces the risk of inadvertent breaches.
Establish internal pathways
Businesses should have a clear internal pathway for employees to raise concerns about after-hours contact โ including access to HR, an employee assistance program, or a workplace mediator โ before disputes escalate to the FWC.
Who Is Covered?
The right applies to all employees covered by the national workplace relations system under the Fair Work Act. This includes most private sector employees in Australia. There are some exceptions and nuances โ for example, the right interacts with enterprise agreements and modern awards, some of which may contain specific provisions about after-hours contact and availability.
For current and detailed information on coverage, visit fairwork.gov.au or the Fair Work Commission.
How Disputes Must Be Resolved
When a dispute arises โ for example, an employer believes an employee’s refusal was unreasonable, or an employee believes they are being pressured to respond despite exercising their right โ the Act prescribes a process:
Step 1: Resolve it in the workplace first
The primary obligation is to resolve the dispute at the workplace level. This means genuine discussion between the employee and their manager, and where appropriate, involvement of HR or a workplace mediator. Many disputes at this stage are resolved informally.
This is where workplace mediation becomes particularly valuable. A skilled, neutral mediator can help both parties articulate their concerns, understand each other’s perspective, and reach a practical agreement โ without the dispute escalating.
Step 2: Refer to the Fair Work Commission
If the dispute cannot be resolved at the workplace level, either party may apply to the Fair Work Commission for assistance. The Commission has powers to deal with the dispute through mediation, conciliation, or โ if necessary โ making orders.
The Commission can make orders to stop an employee from unreasonably refusing contact, or to stop an employer from taking adverse action against an employee who exercised their right. Contravening such orders can result in significant civil penalties.
It is worth noting that the Commission’s preference is also for parties to attempt resolution before formal orders are made. Mediation remains the expected first step even within the Commission’s process.
Practical Steps for Employees Before Mediation
If you are an employee who believes your right to disconnect is not being respected:
- Keep records. Document the after-hours contact โ save emails, messages, and call logs with dates and times. Note whether the contact was urgent, what was requested, and whether you responded.
- Check your award or agreement. Your modern award or enterprise agreement may contain specific provisions about after-hours contact and availability. Understanding these gives you a clearer picture of your rights.
- Raise it internally first. Before escalating, consider raising your concern with your manager or HR. A calm conversation that cites the Fair Work Act and explains your position is often effective โ many managers are simply unaware of the new obligations.
- Seek advice. If internal discussion doesn’t resolve the issue, consider contacting the Fair Work Ombudsman or accessing free advice through a community legal centre at lawaccess.gov.au (NSW) or the Law Access service in your state.
- Request mediation. Workplace mediation offers a confidential, cost-effective path to resolution before an FWC application becomes necessary.
Practical Steps for Employers Before Mediation
If you are an employer managing a right to disconnect dispute:
- Don’t dismiss the concern. An employee raising a right to disconnect issue is exercising a legal right. Dismissing or penalising them creates serious legal risk.
- Review the contact pattern. Honestly assess whether after-hours contact expectations in your business are reasonable and proportionate to the role and its compensation.
- Consider your obligations. Under work health and safety law, you have an obligation to manage psychosocial hazards โ including unreasonable work demands. The right to disconnect intersects with these obligations.
- Engage mediation early. Workplace mediation can resolve a right to disconnect dispute quickly and confidentially โ without the cost and disruption of an FWC application.
Why Mediation Matters Here
The right to disconnect sits in an inherently human context. It is not just about legal compliance โ it is about how people are treated at work and how workplace cultures are shaped. Disputes in this area can quickly become personal, damaging relationships between employees and managers that may otherwise be functional and productive.
Workplace mediation is specifically designed to address this. It creates space for both parties to be heard, helps clarify what each side actually needs (as distinct from their stated positions), and produces agreements that both parties have some ownership over. That tends to produce better outcomes โ and more durable ones โ than those imposed by a tribunal or court.
You can learn more about what to expect from the mediation process in our guide on preparing for mediation.
For more on the role of the Fair Work system in workplace disputes, see our article on the role of Fair Work Australia and workplace mediation.
Resolve Your Workplace Dispute Before It Escalates
Whether you’re an employee who feels their right to disconnect is not being respected, or an employer managing an after-hours contact dispute, Mediations Australia can help.
Our accredited workplace mediators work with both parties to reach practical, fair outcomes โ before the Fair Work Commission gets involved.
Book a consultation today.
This article is general information only and does not constitute legal advice. Workplace relations law in Australia is complex and the application of the right to disconnect will depend on individual circumstances, applicable awards or agreements, and the specific facts of each case. You should seek independent legal advice if you are involved in a workplace dispute.
