Right to Disconnect: How the Fair Work Commission Is Applying the New Law (2026)

The right to disconnect has been live in Australia since 26 August 2024 for employers with 15+ employees, and since 26 August 2025 for small business. It sits in section 333M of the Fair Work Act 2009, inserted by the Closing Loopholes No.1 Act 2023.

The right is narrower than most workers think: you can refuse to monitor, read, or respond to out-of-hours contact UNLESS the refusal is unreasonable. The statute lists four factors the FWC weighs in assessing reasonableness — reason for the contact, whether you're paid for availability, your role, and your personal circumstances.

The FWC's first wave of disputes has now built up enough that we can see how the Commission tends to apply each factor in practice. The pattern: genuine emergencies and on-call paid roles favour the employer; vague non-urgent management contact favours the worker; reasonableness of delivery (one short message vs five aggressive ones) often decides the borderline cases.

If contact continues after you've reasonably refused, you can apply to the FWC for a Stop Order under section 333T. The process is similar to a Stop Bullying Order — and the same constraint applies: you must still be at work in the workplace where the contact is occurring.

The Right to Disconnect Test walks through the four s333M(3) factors and tells you whether a specific incident likely breached the right. Free, no signup.

The law is short — about 12 lines of statute. The substance:

s333M(1): An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.

s333M(2): Subsection (1) also applies to refusing to monitor, read or respond to contact from a third party (e.g. a client, customer, supplier) if the contact relates to the employee's work.

s333M(3): In determining whether refusal is unreasonable, regard must be had to the following matters:
(a) the reason for the contact or attempted contact;
(b) how the contact or attempted contact is made and the level of disruption it causes;
(c) the extent to which the employee is compensated to remain available, or to perform additional work in the relevant period;
(d) the nature of the employee's role and the employee's level of responsibility;
(e) the employee's personal circumstances (including family or caring responsibilities).

Five factors, not four — the second one (manner and disruption) often gets folded into the others in commentary but is statutorily separate. The FWC weighs all five together; no single factor is decisive.

From the disputes that have come before the Commission since August 2024 (and the FWC's published guidance), a pattern is forming on each factor:

(a) Reason for contact. Genuine emergencies — safety incidents, critical system outages, customer crises that genuinely cannot wait — strongly favour the employer. Routine "quick question for tomorrow" contact strongly favours the worker. The substance test is "could this have waited until the next ordinary work day?" If yes, the contact is suspect.

(b) Manner and disruption. A single brief message is much more defensible than multiple urgent contacts. Calls at 11pm or on the weekend are weighed more heavily than a single text at 6:15pm. Contact via personal channels (a worker's personal mobile) when work channels were available cuts against the employer.

(c) Compensation for availability. If you're paid an on-call allowance, an availability allowance, or your contract explicitly compensates you for being reachable, this factor cuts heavily for the employer. Refusing to respond when you're being paid to be available is generally unreasonable. If there's NO such compensation, this factor cuts for the worker.

(d) Role and responsibility. Senior managers, sole-charge professionals, and on-call medical/IT roles have an inherent expectation of after-hours contact built into the job. Junior frontline workers do not. The substance test: would a reasonable employer expect after-hours availability for this role at this pay grade? If no, this factor cuts for the worker.

(e) Personal circumstances. Family and caring responsibilities are explicitly listed. Illness, parenting around bedtime, religious obligations all matter. The Commission has been receptive to circumstances that wouldn't otherwise affect work but make out-of-hours contact unusually disruptive.

The strongest worker cases share these features:

• Junior to mid-level role, no on-call pay, no contractual availability obligation
• Multiple contacts, not a single brief message
• Contact at clearly unsocial hours (late evening, weekend, holiday)
• Subject matter that could obviously have waited
• Employer responded to the worker's refusal with adverse action (warning, demotion, hours cut) — this turns the dispute into both an RTD breach AND a general protections claim under s340

The textbook example: a retail assistant manager messaged repeatedly on a Saturday afternoon about Monday's roster, then issued a written warning when the messages went unanswered. The warning itself becomes adverse action under the general protections regime, separate to the RTD question.

If you're in this position, document everything — date, time, channel, content, your response (if any), the employer's reaction. Use FWM's Right to Disconnect Test to score the specific incident against the s333M(3) factors.

Strong employer cases share these features:

• Worker is genuinely on-call or paid an availability allowance
• Contact was for a real emergency (safety incident, system down, urgent client matter)
• Contact was singular, brief, and via the agreed work channel
• Worker has a senior role where after-hours availability is industry-standard (executives, doctors on rotation, sole-charge IT)
• Employer had no reasonable alternative (no other staff member available, issue couldn't wait)

The Commission has signalled it does NOT want the right to disconnect to become a tool to refuse all out-of-hours contact regardless of circumstance. The "reasonableness" qualifier is doing real work — refusing to take a brief message about a genuine emergency, when you're paid to be reachable, is the kind of refusal the Commission would likely find unreasonable.

One pattern the Commission has emphasised: even otherwise-reasonable contact can flip if it's delivered in an unreasonable manner. Aggressive tone, multiple chasers within minutes, expectation of immediate response, contact via personal channels (rather than work channels) — these can convert a legitimate single-message contact into an unreasonable pattern.

The FWC's framing: the right to disconnect doesn't just protect against contact; it protects against the imposition of work outside hours. A boss who texts respectfully at 6pm and waits for tomorrow morning is doing something different to a boss who calls three times between 9pm and 11pm and expects the worker to drop everything.

Practical implication: even where the underlying purpose of the contact was legitimate, the manner of delivery can make refusal reasonable. Document the manner alongside the substance.

If contact continues after you've reasonably refused, you can apply to the FWC for a Stop Order under s333T. The process:

1. Lodge an application using the FWC's online form (similar to a Stop Bullying Order). There's a small filing fee (around $87, waivable in financial hardship).
2. The FWC typically refers the matter to conciliation first — the employer and worker have a structured discussion (by phone) and try to settle expectations.
3. If conciliation doesn't resolve it, the matter goes to a hearing. The FWC can make orders requiring the employer to stop the contact — and can make those orders binding.

The constraint: you must still be employed by, and at work in, the workplace where the contact is occurring. Once you've left, the FWC's stop-order jurisdiction lapses (though general protections remedies for adverse action that occurred while you were employed remain available for 6 years).

The 21-day deadline does NOT apply to stop orders (that's the unfair dismissal deadline). You can apply at any time while the contact is ongoing.

Step-by-step:

1. Document each instance: date, time, channel (text, email, Slack, call), content (screenshot or save), your response (if any), the employer's reaction. Save copies in personal email, not just work systems.
2. Run the Right to Disconnect Test on a representative incident. It scores the contact against the s333M(3) factors and gives a verdict (likely reasonable / borderline / likely unreasonable).
3. Raise it in writing. Most disputes resolve at this stage. Send a calm, factual email setting out the pattern of contact, your reading of the s333M factors, and your expectation going forward. The framing matters — "I want to clarify expectations around out-of-hours contact" lands better than "you're breaching s333M".
4. If it continues, apply for a Stop Order under s333T. The FWC's online form is straightforward; the conciliation phase resolves most cases.
5. If the employer takes adverse action (cuts hours, issues warnings, demotes, dismisses) because you exercised the right, that's a general protections claim under s340 — wider remedies, reverse onus on the employer, 21-day deadline if you've been dismissed.