Calling Your Crew After Hours Under the Right to Disconnect

You can still call or text your crew after hours. What changed on 26 August 2025 is that employees of small businesses gained the right to disconnect: they can refuse to monitor, read or respond to that contact unless refusing would be unreasonable. The law doesn’t make the call itself unlawful. Whether a refusal is reasonable depends on why you’re calling, whether you pay them to be available, their role and their personal circumstances. So the practical answer is a paid on-call roster for the work that can’t wait, and next-day changes sent as messages that need no reply until start time.

The right to disconnect is an entitlement in section 333M of the Fair Work Act 2009, added by the Closing Loopholes No. 2 amendments in 2024. It’s a legal requirement, not a guideline, for every national system employer. The right has applied to larger employers since 26 August 2024. Small business employers, meaning those with fewer than 15 employees, got an extra year. Every modern award now carries a right to disconnect term too, and the Fair Work Ombudsman publishes guidance on how it works.

What your crew can refuse, and what they can’t

The right covers contact, or attempted contact, outside the employee’s working hours. That includes calls and texts from you, and work-related contact from a third party such as a customer or a builder. An employee may refuse to monitor, read or respond to it “unless the refusal is unreasonable”.

Two limits matter straight away. If a Commonwealth, state or territory law requires the contact, a refusal is automatically unreasonable. And the right belongs to employees only. Subbies on an ABN aren’t covered, because the right doesn’t apply to independent contractors.

The Fair Work Ombudsman puts the other side plainly: the rules “don’t make out of hours contact unlawful”. Employees “can be required to monitor, answer or respond to calls when working overtime or when on call”. The question in any dispute is whether the employee’s refusal was reasonable, not whether you should have picked up the phone.

The five factors that decide if a refusal is reasonable

Section 333M(3) lists matters that anyone deciding the question must consider. It isn’t a complete list, but every case starts here:

• The reason for the contact. A burst pipe at a customer’s house is different from a question about next week’s materials.
• How you make it and how much it disrupts them. A text they can read in the morning is less disruptive than repeated calls at 10 pm.
• Whether you pay them for it. That means an allowance for staying available, or pay for working extra hours. The Act says compensation can be non-monetary too.
• Their role and level of responsibility. A leading hand who runs a site sits differently from a first-year apprentice.
• Their personal circumstances, including family and caring responsibilities.

Two after-hours calls, weighed against the factors

We made this example up to show how the factors work. It isn’t a ruling, and a tribunal would look at the actual facts.

An electrical contractor in Brisbane has a qualified sparky, Dan, on the weekly availability roster. He gets the Electrical award’s availability for duty allowance. At 9 pm a customer’s switchboard fails. The reason is urgent, Dan gets paid to be available, and he’s a qualified tradesperson on the roster. The award goes further: while the allowance is paid, the employer can require him to respond about attending. If he goes out, he earns at least two hours’ pay for the call-out.

The same night, the owner texts Mia, a second-year apprentice who isn’t on the roster and isn’t paid to be available. Tomorrow’s start has moved to a different site. The reason is real but not urgent tonight. Mia earns nothing for availability, and her role is junior. If she leaves the message until morning, the factors weigh very differently from Dan’s case. The fix costs nothing: agree that next-day changes come by text and need no reply until she clocks on.

What your award already allows

The right to disconnect term in each modern award says the employer “must not directly or indirectly prevent” an employee exercising the right. Each trade award then names contact it doesn’t stop. These are the clause numbers in the current versions of five trade awards:

Note the gap for most plumbers. The plumbing award’s on-call allowance covers sprinkler fitters, so an ordinary plumber has no award allowance for being available. They earn call-back pay only when you recall them, with a minimum of three hours. If you want a plumber reachable overnight, the allowance has to come from you, by agreement.

Setting up after-hours contact your crew will accept

The Fair Work Ombudsman’s advice is to talk about expectations early, before an argument at 10 pm. For a small trade business, that comes down to a few decisions you can write into your employment agreements or a one-page policy:

1. Decide who has to be reachable, and pay for it. Put the people you need after hours on a roster with an allowance, whether the award’s or one you agree. Nobody else has to answer.
2. Pick the channel for each kind of message. Emergencies go to the person on call by phone. Tomorrow’s changes go by text or through your job app, with no reply expected until start time.
3. Publish the roster in advance, so nobody finds out they’re on call when the phone rings.
4. Set a cut-off for routine changes. If you settle the next day’s schedule by, say, 5 pm, most evening messages disappear.
5. Review it when the crew, the work or someone’s family situation changes.

If it turns into a dispute

The Act expects you and the employee to try to sort it out at work first. If that fails, either of you can apply to the Fair Work Commission. It can make an order to stop an employee refusing unreasonably, or to stop an employer taking action over a reasonable refusal. It can’t order money to be paid. Breaching an order is a civil remedy provision, which means penalties are possible. The Commission can arbitrate only if both sides agree.

The right is also a workplace right under the general protections. Disciplining or sacking someone because they reasonably refused an after-hours call is adverse action. The Act requires the Fair Work Commission to publish guidelines on the right. In November 2025 the Commission decided they wouldn’t yet be useful and said it would look again in about a year.

This sits alongside the other employer changes of the past two years, including Payday Super’s seven-day deadline. More are in our Australian business admin guides.

The decision for your business

If you need someone to answer after hours, put them on a roster and pay the allowance, and the right to disconnect rarely gets in the way. If you don’t pay anyone to be available, keep evening contact to messages that can wait until morning, and expect no reply. The call that causes trouble is the one in between: an unpaid apprentice expected to answer at night about something that could have waited.