Under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, all employees have the legal right to refuse monitoring, reading, or responding to work-related contact (emails, calls, texts) outside standard hours, unless the refusal is unreasonable.
Who and When?
- Large employers (15+ employees): Law already in effect since 26 August 2024
- Small employers (<15 employees): Must comply from 26 August 2025
What Counts as “Unreasonable” Refusal?
When considering if a refusal is unreasonable, these factors apply
- Reason for contact (e.g., emergency, legal requirement)
- Method and disruption caused (email vs. urgent phone call)
- Compensation for being on call or working extra hours
- Employee’s role and responsibility (seniority/on-call status)
- Personal circumstances, such as care responsibilities
- Other relevant factors unique to the situation
Employers must consider all relevant factors.
Role of the FWC
1. Dispute Resolution Gateway
- First step: Employers and employees must attempt to resolve disagreements internally at the workplace before involving the FWC
- Application forms: Parties use Form F92 (raising a dispute), Form F92A (responding to one), and Form F92B (agreeing to arbitration)
2. Stop Orders
- If internal resolution fails, either party can apply to the FWC for a stop order under s 333P of the Fair Work Act
- These orders can require:
- Employers to cease contacting employees outside hours when refusal is reasonable, or prevent them from penalising a refusal.
- Employees to refrain from unreasonably refusing contact if their refusal is deemed unreasonable.
3. Timely Intervention
- The FWC must commence handling an application within 14 days and resolve it as soon as practicable.
4. Flexible Case Handling
- The FWC may address disputes by:
- Issuing stop orders,
- Holding conferences, mediation or, arbitration with both parties’ consent
- They cannot award monetary compensation, but do have the authority to enforce their orders.
5. Enforcement & Penalties
- Breaching a stop order can trigger civil penalties.
What Employers Should Do
- Policies & Contracts
Update terms to define working hours and after-hours expectations. Clearly explain what reasonable contact looks like and specify on-call arrangements and compensation.
- Staff & Manager Training
Clarify when contact is reasonable versus protected refusal. Include real-life scenarios and team discussions to build cultural buy‑in.
- Communication Channels
Introduce auto-replies, clear email signatures (e.g., “No response required after hours”), and establish escalation pathways for emergencies.
- Dispute Resolution
Encourage informal resolution first. If unresolved, refer to the Fair Work Commission, which can issue stop orders or mediate.
- Cultural Norms
Use this as a chance to reinforce boundaries. Acknowledge the need for flexibility in emergencies, but normalise “switching off” outside work hours.
Click here to access a template right to disconnect policy.
CCF NSW can assist with reviewing policies, contracts and, other documents. For assistance, contact CCF NSW on 9009 4000.
Image Credit: Assignar