TLDR
Every employee in the national workplace system now holds a legal right to disconnect, including staff at businesses with fewer than 15 people. Workers may refuse to read or answer out-of-hours contact unless that refusal is unreasonable. Paying an on-call or overtime rate removes the right for that period.
KEY TAKEAWAYS
The law arrives for the smallest employers
Every small business owner in Australia who has ever sent a Sunday-night text to a staff member now operates under a different legal reality. The right to disconnect rules commenced for small business employers, those with fewer than 15 employees, on 26 August 2025, exactly one year after the same rules took effect for larger employers.[1] The staged rollout is now complete, and every national system employee holds the right.
The mechanics sit inside section 333M of the Fair Work Act 2009. Under that provision, an employee may refuse to monitor, read or respond to contact or attempted contact from an employer outside of working hours, or from a third party where the contact relates to their work, unless that refusal is unreasonable.[2] The word "unreasonable" is doing considerable work in that sentence, and the Act spells out exactly how it is tested.
What makes a refusal unreasonable
The law gives decision-makers five factors to weigh when assessing whether an employee's refusal crosses the line.[2] First is the reason for the contact, an after-hours call about a genuine emergency sits differently to a query that could wait until Monday. Second is the method used and the disruption it causes: a phone call at 11 pm carries more weight than an email flagged for the morning.
Third is whether the employee has been compensated for being available or for working extra hours. This is the hinge that most small business operators will find practical. Fourth is the nature and seniority of the employee's role, a senior manager with operational responsibility is in a different position to a casual retail assistant. Fifth are personal circumstances, including family or caring responsibilities.[2]
The five factors interact. A refusal from a warehouse worker with no overtime pay, contacted by SMS at midnight about a roster query, would look very different to a refusal from a salaried operations manager receiving a call during a live incident where clients face financial loss. The law does not prohibit after-hours contact outright, it regulates when an employee can reasonably push back.
Who counts as a small business
Getting the headcount right matters because misclassification determines whether the 26 August 2024 or the 26 August 2025 start date applied to a given employer. The threshold is fewer than 15 employees at the relevant time.[1] Two details change how that number is calculated for owners who think their firm is clearly below the line.
Associated entities are included in the count. A sole trader who owns three separate hospitality businesses, each nominally employing four people, likely crosses the threshold when the entities are aggregated.[1] Casual employees count too, but only those engaged on a regular and systematic basis, the definition used throughout the Fair Work Act to distinguish genuine casual staff from irregular labour-hire arrangements.
The fix for owners who need after-hours availability
The practical pathway for small business owners with genuine operational need is direct. Employees can be required to monitor, answer or respond to contact when they are on call or working overtime if they receive the applicable on-call allowance or overtime pay under modern awards or enterprise agreements.[1] Pay the applicable rate and the right does not apply for that window. The law builds a compensation mechanism directly into the reasonableness analysis.
As Minister Murray Watt said during Senate debate on the legislation, the right would not apply to employees who are compensated to remain available to perform work.[3] For owners who rarely need after-hours availability, but do need it occasionally, the framework rewards having the conversation about expectations before a dispute arises rather than after.
Fair Work Ombudsman Anna Booth said the moment of extension should be treated as a prompt for small businesses to set clear expectations. "We hope that people working in larger businesses have already had conversations about out of hours contact and set expectations in the context of their workplace and the employee's role; now it's time for small business employers and employees to have that conversation," Booth said.[4]
When a dispute lands at the Fair Work Commission
If an employer and employee cannot resolve a disagreement about after-hours contact between themselves, the matter moves to the Fair Work Commission under sections 333N to 333P of the Act.[2] The legislation requires the Commission to begin dealing with an application within 14 days. That is a tight statutory clock that gives neither party much room to delay.
The Commission's order-making power runs in both directions. It can order an employee to stop an unreasonable refusal, protecting the employer whose operational needs are genuine, or it can order an employer to stop requiring contact or taking adverse action against a worker who exercises the right.[2] Adverse action includes dismissal, demotion or reduction in hours taken in response to an employee exercising a workplace right, which was already prohibited under the Act's general protections.
The two-step process, workplace resolution first, Commission second, signals that the legislature intended most disputes to be resolved without a formal hearing. In practice, the 14-day Commission obligation gives a reluctant party a reason to engage seriously at the workplace stage. Dragging out an internal conversation does not delay the formal process indefinitely; it just means the Commission's clock starts earlier.
Context: where this fits in the Closing Loopholes reforms
The right to disconnect was introduced as part of the Closing Loopholes package, which received royal assent on 26 February 2024. The staged rollout, larger employers first, small businesses a year later, reflected a judgment that smaller operators needed more preparation time and would benefit from observing how the rules settled in bigger workplaces before their own obligations began.[1]
The policy rationale was worker wellbeing: the inability to separate paid work from personal time has been identified across jurisdictions as a driver of burnout and deteriorating mental health, particularly where digital communication tools make it trivially easy for managers to reach staff at any hour. Australia joined a list of countries including France, Belgium and Germany that have codified some version of this right, though the specific mechanism and enforcement architecture vary widely.
For small business owners, the practical upshot is straightforward. Document which roles genuinely require after-hours availability. Check whether the applicable modern award provides an on-call allowance. Pay it. Then the late-night call is lawful and the obligation is clear to both parties. Where no genuine operational need exists, the simplest approach is also the most legally sound: wait until the next working day.
SOURCES & CITATIONS
FREQUENTLY ASKED QUESTIONS
Does the right to disconnect mean employers cannot contact staff after hours at all?
How does a small business remove the right to disconnect for a particular employee?
How is a small business employer defined for this law?
What happens if a dispute about after-hours contact cannot be resolved at work?
Jonas Valenti writes about search and how businesses get discovered. He has spent years watching what makes a company visible online, and is unsentimental about tactics that no longer work.
