Fair Work Act 2009

An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.

An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.

Without limiting the matters that may be taken into account in determining whether a refusal is unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

the reason for the contact or attempted contact;

how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

the extent to which the employee is compensated:

to remain available to perform work during the period in which the contact or attempted contact is made; or

for working additional hours outside of the employee’s ordinary hours of work;

the nature of the employee’s role and the employee’s level of responsibility;

the employee’s personal circumstances (including family or caring responsibilities).

For the purposes of paragraph (c), the extent to which an employee is compensated includes any non‑monetary compensation.

For the avoidance of doubt, each of the rights in subsections (1) and (2) is a workplace right within the meaning of Part 3‑1.

The general protections provisions in Part 3‑1 also prohibit the taking of adverse action by an employer against an employee because of a workplace right of the employee under this Division.

For the avoidance of doubt, an employee’s refusal to monitor, read or respond to contact, or attempted contact, from their employer, or from a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.

For the avoidance of doubt, if:

an employee is covered by an enterprise agreement; and

the enterprise agreement includes a right to disconnect term that is more favourable to the employee than the rights in subsections (1) and (2);