By Bhavishya Gangwani
Imagine this, it’s 9:00 pm on a Friday and you are winding down on the couch, suddenly your phone lights up with a notification to join a work call or an email from your boss. Do you answer it?
For a long time, an unwritten rule of the modern workplace was an un-enthusiastic yes, we have long been tethered to our jobs by an invisible digital leash. But this has changed since the adoption of “right to disconnect” under the Fair Works Act 2009 (Cth) (‘FW Act’)[1]. With the final rollout extending to small businesses in August 2025, employees across Australia now have statutory protection to ignore the dreaded late-night notifications.[2]
But as always there is a catch, it comes down to what the law considers ‘unreasonable’.
I THE CATCH 22 SITUATION
Let’s clear the biggest misconception before we start ignoring the work calls and notifications, the government has not made it illegal for employers to contact us after hours. The Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth) did not create a blanket ban on sending emails after work hours.[3]
Instead, section 333M of the FW Act protects your right to refuse to monitor, read or respond to contacts received after work hours, unless doing so would be unreasonable.[4] It’s a clever legislative compromise, it respects that we live in a global, flexible economy with varying time zones, while still giving employees the legal backbone to reclaim their evenings without fear of being penalized or missing out on promotions. It feeds our illusion of control and let’s us have “a life”. Jokes apart, let’s look at the “Unreasonableness Test”.
II THE ‘UNREASONABLENESS” TEST
The FW Act does not give us a black and white rule, it provides a checklist of factors, meaning every situation is judged on its own merits.[5]
But first, context is everything. If the company servers just crashed or there is a critical security breach, ignoring the call is likely going to be unreasonable under the FW Act. But if the contact is just an employer asking for a routine update or how do you convert word document to pdf, which could easily wait till 9:00 am, you are well within your rights to leave it on read (unless you are a really helpful person). The method of contact matters too, by the way. After all , a demanding phone call from your employer interrupts your dinner a lot more than a passive email sitting in your email inbox.
There is also a monetary factor too, the legislation expects a lot more availability from you if you are being compensated for it.[6] If you get an on-call allowance or you are a senior executive with a coverage that includes after hour crises in your salary package, you really cannot disconnect every time the clock strikes 5:00 pm. But for a junior employee on a standard contract, the burden to reply is much lower.
More importantly, the law explicitly protects your personal time, especially if have a family or caring responsibilities.[7] Ignoring a call because you are finishing your kid’s homework or putting them in bed or even caring for a relative is a heavily protected refusal.
III THE COMMERCIAL REALITY AND RESOLVING DISPUTES
For employers, the change made by the FW Act is a seismic cultural shift. Indeed, HR departments and executive teams are now forced to seriously audit their contracts and out of hours policies. The burden has essentially shifted to managers to pause and ask themselves, “is this truly urgent?” before hitting the send button. Managers also have to manage client expectations, making sure third parties are not demanding immediate replies from staff who are off the clock. If a disagreement over communication does boil over, the law requires everyone to try and sort it out internally first .[8] Nobody wants to jump straight into a legal battle, but if workplace talks fail, either side can take it to the Fair Works Commission (FWC). The FWC can step in and issue legally binding stop orders[9], either telling the boss to stop calling or telling the employees to pick up the phone.
IV THE BOTTOM LINE
Overall , the right to disconnect is not an impenetrable wall against work, it is a healthy legal tool designed to force better boundaries. It formally acknowledges that constant digital burnout helps no one. As workplaces continues to adapt, the FW Act is shifting the cultural norm so that off the clock availability is finally the exception, rather than the uncompensated rule.
[1] Fair Work Act 2009 (Cth)(‘FW Act’).
[2] Ibid.
[3] Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth).
[4] FW Act (n 1) s 333M (1) – (2).
[5] Ibid s 333M(3).
[6] FW Act (n 1), s 333M(3)(d).
[7] Ibid s 333M(3)(e).
[8] FW Act (n 1), s 333.
[9] Ibid, s 333W.