Right to Disconnect — What AU Employers Actually Need to Do in 2026

What the law actually says

Section 333M of the Fair Work Act gives employees the right to refuse to monitor, read, or respond to contact from their employer outside their working hours if doing so is unreasonable. That last clause is the whole game. The law doesn't say employees can never be contacted after hours — it says they can refuse if the contact is unreasonable.

Who's covered (and when it kicked in)

• 26 August 2024 — businesses with 15+ employees
• 26 August 2025 — small businesses (under 15 employees)

So as of late 2025, every Australian employer is covered. If you've not done anything yet, you're already exposed.

What "unreasonable" means in practice

The Fair Work Act lists factors that courts/the Fair Work Commission will weigh:

1. Reason for the contact (genuine emergency vs. "can you check this?")
2. How disruptive it is (a 30-second message vs. a 2-hour task)
3. Whether the employee is paid for being on-call
4. The employee's role and responsibility level
5. The employee's personal circumstances (family, second job, etc.)

A site supervisor with a $20K on-call allowance answering a 2am WhatsApp about a server outage? Reasonable. A part-time admin getting Slack messages on Saturday about formatting a deck? Unreasonable.

The penalties

If an employee disputes after-hours contact and the FWC orders the employer to stop, breaching that order triggers civil penalties:

• Up to $18,780 per breach for individuals
• Up to $93,900 per breach for corporations

And those are per breach. A pattern of after-hours contact across multiple employees compounds fast.

Practical steps employers should take this week

1. Add a Right to Disconnect clause to employment contracts

For new hires it's a paragraph. For existing staff, you don't need to re-sign — but you should issue a written notice that documents your position. Cover: working hours, expected response times, on-call definitions, after-hours communication channels.

2. Decide which roles are genuinely on-call

If a role legitimately requires after-hours availability, document it. Pay an on-call allowance. Don't leave it ambiguous — ambiguity is what gets employers in front of the FWC.

3. Train your managers

The most common breach pattern we see is well-meaning managers who Slack their team on Sunday "just so it's ready Monday morning." That's now a legal risk. Train them.

4. Audit your shared inboxes and communication tools

If a team uses a shared support@ inbox, or rotation, document the on-call schedule. The Fair Work Commission has been clear that ad-hoc "whoever's online" expectations don't fly.

Where most AU SMBs are getting it wrong

The two biggest mistakes we see:

1. Treating it as policy theatre. Some employers wrote a one-page policy and never trained anyone on it. Policy without enforcement is worse than no policy — it documents that you knew and didn't act.
2. Assuming small business is exempt. Small business was exempt for 12 months. As of August 2025, you're in scope.

How BBN Co-Pilot helps

BBN Co-Pilot includes built-in business-hours awareness across helpdesk, marketing, and PSA. Staff can see who's on-call before sending. Outbound emails from sequences respect send_only_business_hours=True if you set it. The unsubscribe / "stop" footer is auto-appended to outbound mail. None of this replaces a written policy, but it removes the most common after-hours contact mistakes from your tooling.

Bottom line

This isn't a "new" law in 2026 — it's been in effect for 18 months for big employers and 8 months for small ones. The FWC has started taking applications. Get a policy in place this quarter, train your managers, and audit your communication tools. It's a $93,900 problem if you don't.

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Authored by Trent & Peter at BBN Digital. Last updated 26 April 2026.