The Right to Disconnect in Australia: What Section 333M Actually Allows

Section 333M of the Fair Work Act 2009 (Cth) lets an employee refuse to monitor, read or respond to out-of-hours contact from their employer, or a work-related third party, unless the refusal is unreasonable. It commenced for most employers on 26 August 2024, with a delayed start for small business employers.

What the Right to Disconnect Actually Says

Section 333M(1) of the Fair Work Act 2009 (Cth) provides that an employee may refuse to monitor, read or respond to contact, or attempted contact, from their employer outside of their working hours, unless the refusal is unreasonable. Section 333M(2) extends the same protection to contact, or attempted contact, from a third party (such as a client, supplier or member of the public), where that contact relates to the employee's work and happens outside working hours. The right does not ban an employer or a third party from making contact; it protects the employee's choice not to engage with it. Nothing in section 333M requires an employer to stop calling, emailing or messaging outside hours, and nothing automatically makes such contact unlawful. The legal consequence sits entirely on the employee's side of the exchange: a refusal to engage that would otherwise look like poor responsiveness is instead a protected choice, provided it is not unreasonable.

When Did the Right to Disconnect Start

The right to disconnect was inserted into the Fair Work Act by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), which received Royal Assent on 26 February 2024. Several of that Act's reforms, including the new right to disconnect provisions, commenced six months later, on 26 August 2024, for employers generally. Small business employers, defined by reference to the same fewer-than-15-employees test used elsewhere in the Fair Work Act, were given a further 12 months before the right applied to them, so it began operating for small business employers from 26 August 2025. An employee working for a small business employer today is therefore covered by the same right to disconnect as everyone else; the delay only affected the transition period between 2024 and 2025.

The Factors That Decide Whether a Refusal Is Unreasonable

Section 333M(3) lists factors that must be taken into account, without limiting what else may be considered, in deciding whether a particular refusal was unreasonable: the reason for the contact or attempted contact; how the contact was made and the level of disruption it caused the employee; the extent to which the employee is compensated, including non-monetary compensation, either to remain available during the period of contact or for working additional hours outside their ordinary hours; the nature of the employee's role and their level of responsibility; and the employee's personal circumstances, including family or caring responsibilities. These factors work together rather than in isolation. A senior manager who is paid an allowance for on-call availability and who receives a short, urgent message about a genuine operational problem sits in a very different position from a junior award-covered employee who receives repeated non-urgent messages late at night with no corresponding pay.

When a Refusal Is Automatically Unreasonable

Section 333M(5) removes any doubt in one specific situation: an employee's refusal will be treated as unreasonable if the contact or attempted contact is itself required under a law of the Commonwealth, a state or a territory. This covers, for example, a legally mandated safety notification or a statutory reporting requirement that genuinely has to reach the employee outside their normal hours. Outside that narrow category, whether a refusal is reasonable is a factual question weighed against the section 333M(3) factors, not a fixed list of contact types that are always permitted or always protected.

Right to Disconnect and Enterprise Agreements

Section 333M(6) allows an enterprise agreement to include its own right to disconnect term. Where such a term exists and is more favourable to the employee than the statutory right in subsections (1) and (2), the enterprise agreement term applies to that employee instead of the Fair Work Act minimum. This mirrors the general structure of the National Employment Standards, where an agreement can improve on a legislated minimum but cannot undercut it for a right of this kind.

How the Right to Disconnect Interacts With General Protections

Section 333M(4) puts beyond doubt that the rights in subsections (1) and (2) are each a "workplace right" for the purposes of Part 3-1 of the Fair Work Act. That matters because Part 3-1 separately prohibits an employer from taking adverse action against an employee because the employee has, or exercises, a workplace right. If an employee is disciplined, has hours cut, or is dismissed because they declined to answer out-of-hours contact in circumstances where the refusal was not unreasonable, that can raise a general protections issue distinct from, and potentially alongside, a right to disconnect dispute. See General Protections and Adverse Action for how that claim type works, including its 21-day deadline for dismissal-related applications.

Resolving a Right to Disconnect Dispute at the Fair Work Commission

Where an employee and employer cannot resolve a disagreement about the right to disconnect at the workplace level, either can apply to the Fair Work Commission to deal with the dispute. The Commission can first try to resolve the matter through conciliation or mediation, and if that does not succeed, it has power to make orders, including a stop order directing an employer to stop requiring an employee to monitor, read or respond to contact outside working hours in specified circumstances, or a stop order directing an employee to stop unreasonably refusing to monitor, read or respond to contact. A person who contravenes such an order can face civil penalties. This dispute process exists specifically because the underlying legal test, reasonableness, is contestable in individual cases; the Commission's role is to make that assessment, not for either party to assume the outcome in advance.

What the Right to Disconnect Does Not Mean

The right to disconnect does not ban employers from ever contacting staff outside rostered hours, does not create a general entitlement to be uncontactable, and does not override contractual on-call or standby arrangements that an employee has agreed to and is compensated for, though those arrangements still feed into the reasonableness assessment. It also does not change an employee's ordinary hours of work, overtime entitlements, or the terms of any applicable modern award or enterprise agreement dealing with additional hours; those sit alongside the right to disconnect rather than being replaced by it.

This article provides general information about the right to disconnect under Australian Commonwealth workplace law as at 19 July 2026. It is not legal advice, does not take into account your individual circumstances or the terms of any applicable modern award, enterprise agreement or employment contract, and does not account for later legislative or Fair Work Commission developments. For advice about a specific situation, consult a legal practitioner admitted in the relevant Australian state or territory, the Fair Work Ombudsman, or the Fair Work Commission.

Related reading: the Australia employment law hub, General Protections and Adverse Action, Casual Employee Rights in Australia, and Unfair Dismissal in Australia.