Closing Loopholes No. 2 Act amended the Fair Work Act 2009 to prevent employers from contacting employees (or attempting to contact) outside of their ordinary work hours.

For non small businesses (with 15 or more employees), this came into effect on 26 August 2024 and for small businesses (with less than 15 employees), this came into effect on 26 August 2025.

What does this mean for Employers?

The amendment ensures employees are not required to monitor, read or respond to email, telephone calls or any other kinds of communication from an employer (or third party) outside their ordinary working hours, unless the employee’s refusal to do so is unreasonable.

Whether the employee’s refusal is unreasonable will be determined by a number of factors including the reason for the contact; how the contact is made; the level of disruption caused by the contact; compensation received by the employee for remaining available to perform work during the period or for working any additional hours outside of their ordinary hours; the nature of the employee’s role and level of responsibility; and the employee’s personal circumstances (including family or caring responsibilities).

Employers must be aware that the amendments contain a formal dispute resolution process relating to the application of these provisions. If the dispute is not initially resolved between the parties at a workplace level (which is the first requirement), either the employee or employer can apply to the Fair Work Commission to deal with the dispute and the following types of orders can be made – the employer must cease contact with the employee outside of their ordinary hours; an employer must not take disciplinary action against an employee for refusing the contact; or an employee must stop refusing contact with the employer outside their ordinary hours. A contravention of an order attracts a civil penalty of up to $19,800 for individuals and $99,000 for a corporate body for each contravention.

We recommend you seek legal advice from an experienced employment lawyer before taking disciplinary action against an employee for not responding to your communication out of hours.