Understanding The Employee Right To Disconnect Rules

It's 7.30 pm and you suddenly remember something an employee needs to deal with tomorrow, so you send them an email while it is fresh in your mind.

Or perhaps a client has contacted you after hours, a shift needs to be covered at short notice, or an issue has come up that genuinely can't wait until the next morning.

For many business owners, situations like these are simply part of running a business.

Work doesn't always fit in neatly between 9 am and 5 pm, and there will be times when communicating with employees outside their usual working hours is entirely reasonable.

This is also why the employee right to disconnect is sometimes misunderstood.

At first glance, it can sound as though employers are no longer allowed to contact employees once they have finished work, but that isn't what this legislation says.

The rules are much more about reasonable expectations than they are about banning communication.

Under the Fair Work Act, employees have the right to refuse to monitor, read or respond to work-related contact outside their working hours unless that refusal would be unreasonable in the circumstances.

For small business employers, generally those with fewer than 15 employees, the rules have applied since 26 August 2025.

The distinction is important. An employer can still send an email after hours, but the employee may not necessarily be required to read or respond to it immediately.

What The Employee Right To Disconnect Actually Means

The basic principle is relatively straightforward. An employee may refuse to monitor, read or respond to contact from their employer outside their working hours unless their refusal is unreasonable.

The same principle can extend to work-related contact from other people, including customers, clients, suppliers or members of the public.

Whether a refusal is unreasonable depends on the circumstances.

A number of factors can be considered, including the reason for the contact, how the contact was made and how disruptive it was, whether the employee is compensated for being available or working additional hours, the nature of their role and level of responsibility, and their personal circumstances, including family or caring responsibilities.

This means the same situation can look quite different depending on the employee and the role.

For example, contacting a senior operations manager because a serious incident has occurred may be entirely reasonable, particularly if responding to urgent operational matters is part of their position. The same expectation may not be reasonable for a part-time administration employee who has finished for the day and has no responsibility for after-hours operations.

Similarly, an employee who receives an on-call allowance or whose role specifically includes after-hours availability may have different obligations from an employee whose employment arrangements contain no such requirement.

Modern awards and enterprise agreements also need to be considered. Modern awards now contain right to disconnect provisions, and some include specific arrangements dealing with matters such as being on call, emergency roster changes or recalls to work.

This is one reason employers should avoid treating the right to disconnect as a stand-alone policy issue without first considering the employee’s broader employment conditions.

Where Businesses Tend To Get It Wrong

One of the most common misconceptions is that employers are prohibited from sending emails or messages outside working hours.

This isn't the case; a business owner who prefers to catch up on emails at say 8 pm can still do so. The more important question is whether employees understand that the message can wait until their next working period, or whether there is an expectation that they should be checking and responding that evening.

This distinction often comes down to workplace behaviour rather than what is written in a policy.

An employer might regularly say there is “no expectation to respond after hours”, but if employees who respond immediately are praised for being committed while those who wait until the morning are criticised for being unresponsive, the practical expectation will quickly become clear.

Another common assumption is that paying an employee a salary means they are automatically expected to be available whenever the business needs them.

That isn't necessarily the case. Remuneration is one factor that can be considered when determining whether a refusal to respond is unreasonable, particularly where an employee is being compensated for additional hours or availability.

However, a salary does not automatically create unlimited after-hours availability. Employers still need to consider the role, the employee’s normal working hours, any applicable award or enterprise agreement, the employment contract and what the employee is actually being paid to do.

Part-time employees can also present a practical challenge. In smaller businesses, it can be common to contact someone on their non-working day because they are the person who knows the customer, understands the system or was dealing with the issue previously.

An occasional question may not create a problem, but if this happens regularly, the employee can effectively become available across five days while being paid to work three.

This is often not deliberate, but usually happens because a small team relies heavily on individual knowledge.

What a Better Approach Looks Like In Practice

The most effective approach is usually to create clear and realistic expectations rather than introducing overly restrictive rules.

Start by considering the different roles in your business and whether any of them genuinely require employees to be available outside their normal working hours.

For many employees, the answer will be no. If an email arrives after they finish work, they can deal with it when they next start as there is no particular business benefit in expecting them to monitor their phone in the meantime.

Other positions may occasionally need to respond to urgent matters. This could include a safety incident, a critical system failure, a significant client issue or an unexpected staffing problem that genuinely requires immediate attention. If that is part of the role, it is better for everyone if the circumstances are understood in advance rather than decided in the middle of an incident.

There may also be roles where after-hours availability is a genuine and regular requirement. If that is the case, the arrangements should be properly structured. The applicable award or enterprise agreement should be checked, any allowance or overtime requirements should be considered, and the employment contract should reflect what the business actually expects.

It's also useful to agree on how urgent communication will occur. If employees are expected to respond to genuinely urgent matters, they shouldn't have to monitor email, Teams, text messages and several other platforms all evening just in case something important appears.

A simple arrangement may work much better. Routine emails can wait until the next working day, while a phone call from a designated manager may indicate that something genuinely requires attention.

Managers should also think about the signals they send through their own behaviour. There is nothing wrong with working outside standard hours if that suits you, but employees should not automatically feel that they need to mirror your working pattern.

Adding a sentence such as “no need to respond until tomorrow” can certainly help when sending an evening email. If employees genuinely see that nobody expects an immediate response, the boundary becomes much easier to maintain.

A Quick Sense-Check

It may be worth looking at how after-hours communication currently works in your business and asking a few simple questions:

• Do employees understand when they are expected to respond outside their usual working hours?

• Are part-time employees regularly contacted on days they do not work?

• Are there roles where on-call or emergency availability is genuinely required, and are those arrangements properly documented?

• Are managers consistent in how they communicate with employees after hours?

• Have you checked the relevant modern award or enterprise agreement?

If you are uncertain about the answers, it doesn't necessarily mean you need a complicated new policy. In many cases, the issue can be addressed simply by clarifying expectations with managers and employees.

Final thoughts

The right to disconnect doesn't mean that businesses need to pretend work stops the moment an employee finishes for the day. For many organisations, particularly small businesses, there will always be occasions when someone needs to make contact outside normal working hours.

The important distinction is between contact that is genuinely necessary and an expectation that employees remain permanently available simply because technology makes it possible to reach them.

For most small businesses, getting this right is less about introducing strict rules and more about being deliberate. Understand which roles genuinely require after-hours availability, check the applicable employment conditions, be clear about what employees are expected to do, and make sure managers apply those expectations consistently.

If you are unsure how the right to disconnect applies to your team, particularly where you have salaried employees, part-time arrangements, on-call responsibilities or regular after-hours client contact, we can help you review your current arrangements and put practical expectations in place without overcomplicating them.

If you need professional support with this, feel free to reach out sandra@hrconsultingtas.com.au

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