What the right is
Under the Fair Work Act, an employee may refuse to monitor, read or respond to contact, or attempted contact, from their employer or a third party outside their working hours, unless refusing is unreasonable. It applied from 26 August 2024 to employees of non-small business employers and from 26 August 2025 to employees of small business employers (Fair Work Ombudsman, Right to disconnect, read 14 October 2026). A small business employer has fewer than 15 employees at the relevant time, counting associated entities and regular casuals (Fair Work Ombudsman, Right to disconnect (definition)).
What it is not
The Fair Work Ombudsman's own wording is precise: the rules do not make out-of-hours contact unlawful. You can still send the message. What the employee has is a right to not respond until their working hours, unless their refusal is unreasonable, and the test turns on the refusal, not the contact.
When a refusal is unreasonable
| Factor | Pushes towards reasonable to refuse | Pushes towards unreasonable to refuse |
|---|---|---|
| Reason for contact | Routine, could wait for the next shift | Genuine emergency, safety, a legal deadline |
| How disruptive | Call at 10pm expecting action | An email the employee can read in the morning |
| The employee's role and pay | Junior role, paid for set hours | Senior role, paid an allowance for availability |
| Personal circumstances | Caring responsibilities |
Awards and enterprise agreements can add their own right-to-disconnect clauses on top of the Act, so check the award that covers each role; Valont's award guides note where a clause exists.
What a small employer should actually do
Write down the expectation. For most roles that is a sentence in the contract or a policy: when the business expects a response, when it does not, and who is on call for what. Pay an availability or on-call allowance where the award provides one and the role genuinely needs it. And resist the quiet workaround of contacting the person who never refuses; the test is the reasonableness of refusal, and a pattern of after-hours contact to one employee is the kind of thing a dispute is built on.
Where this sits in a connected back office
This is a people-systems question with a payroll edge: on-call and availability allowances are award entitlements that have to flow into the pay run. Handling the policy and the payroll in one team is how the two stay consistent; see HR advisory.
If this is the problem you are working on, Valont’s People hub runs team culture & insights and award compliance as part of a connected back office, and the award finder shows where to start.
About the author
Nick Lucock
Chief Executive Officer, Valont
Nick Lucock is the Chief Executive Officer of Valont and leads its day-to-day operations across Finance, People, Operations and Growth. He runs the team that does the work Valont publishes about: the bookkeeping, BAS and payroll runs, the award interpretation on every pay cycle, the IT and security layer, and the advisor cadence that keeps an owner's back office current. Nick writes the practical side of Valont's library, the processes, systems and tools that keep Australian SMEs compliant and growing, and he is the author of most of the operational articles on the site. He works with owners across construction and trades, health, hospitality and professional services.
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