What should I do if my employer is trying to contact me outside working hours?

From 26 August 2024, employees of businesses with more than 15 employees may refuse to monitor, read or respond to contact, or attempted contact, from an employer or a third party outside of the employee’s working hours unless the refusal is unreasonable.

Who does it cover

This ‘right to disconnect’ is now a protected right that is recognised in the Fair Work Act 2009 and all modern awards. From 26 August 2025, this right will extend to include employees in businesses of 15 employees or less.

What is an unreasonable refusal?

To determine whether a refusal to monitor, read or respond to contact or attempted contact is unreasonable, the following factors are considered:

1. the reason for the contact;
2. how the contact is made and how disruptive it is to the employee;
3. the employee’s role in the business and level of responsibility;
4. the employee’s personal circumstances, including family or caring responsibilities;
5. how much the employee is compensated or paid extra for being available to perform work during the period they are contacted, or working additional hours outside their ordinary hours of work.

It is unreasonable for an employee to refuse to monitor, read or respond to contact if that contact is required by law.

Things to think about

Some of the things that we, as lawyers, would want to ask you about to ascertain whether your refusal is reasonable or not would be:

1. any term in your contract about communication outside of working hours;
2. the amount you are paid and, if you are an award employee, the amount to which you are entitled under the relevant award;
3. your level of seniority;
4. the normal operating hours of your employer’s business and when and how often the employer wants to contact you; and
5. your personal circumstances, including any family or caring responsibilities and how these impact on your employer seeking to contact you.

First steps

In the first instance, you should try to discuss the issue directly with your employer to attempt to resolve any dispute.

If discussions with your employer do not resolve the dispute, you may apply to the Fair Work Commission (FWC) to deal with the dispute about the right to disconnect. This may include the FWC making orders to stop your employer from taking certain actions.

If you need assistance with an employment matter, feel free to call us on (03) 5722 4681.