Preparing for the ‘Right to Disconnect’: What Small Businesses Need to Know Before 26 August 2025
Starting 26 August 2025, small business employers in Australia—those with fewer than 15 employees—will be subject to a new workplace obligation under the Fair Work Act 2009 (Cth). These changes, introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, grant employees the ‘right to disconnect’ from work-related communications outside their ordinary working hours.
What Is the ‘Right to Disconnect’?
The ‘right to disconnect’ allows employees to refuse to monitor, read, or respond to work-related contact—or attempted contact—from their employer or third parties outside their working hours, unless such refusal is unreasonable.
This right aims to promote work-life balance and reduce unpaid overtime by setting clear boundaries between work and personal time.
When Does It Apply?
- Non-Small Business Employers: The right took effect on 26 August 2024 for employers with 15 or more employees.
- Small Business Employers: The right will apply from 26 August 2025.
Determining ‘Unreasonable’ Refusals
An employee’s refusal to engage in after-hours communication may be deemed unreasonable based on several factors:
- Reason for Contact: Urgent matters or emergencies may necessitate after-hours communication.
- Employee’s Role: Positions with higher responsibility may require greater availability.
- Personal Circumstances: Individual situations, such as caregiving responsibilities, are considered.
- Mode and Disruption of Contact: The method and intrusiveness of the contact matter.
- Compensation: Whether the employee receives additional pay for being available outside standard hours.
Employers should assess these factors before expecting after-hours responses from employees.
Dispute Resolution
If disagreements arise regarding the right to disconnect:
- Internal Resolution: Employers and employees must first attempt to resolve issues within the workplace.
- Fair Work Commission: If unresolved, parties can approach the Fair Work Commission, which may:
- Issue stop orders for unreasonable refusals of employees or employer actions attempting to contact employees outside of work hours.
- Conduct conferences to facilitate resolution.
- Make other appropriate determinations.
Non-compliance with Commission orders can lead to a range of penalties, including fines and further orders. It is also a criminal offence under the Fair Work Act to contravene an order and has a maximum penalty of 12 months imprisonment.
Implications for Small Businesses
Small businesses should proactively prepare for the upcoming changes:
- Policy Development: Establish clear guidelines on after-hours communication expectations in workplace policies and procedures.
- Employee Agreements: Review and update employment contracts to reflect the new rights; this may include reviewing whether additional pay is necessary where an employee is expected to be contactable outside of usual work hours.
- Training: Educate management and staff about the right to disconnect and its implications.
- Communication: Foster open discussions to set mutual expectations regarding availability.
Employers should be aware that they cannot take adverse action against an employee because of their right to disconnect; this may give rise to a general protections claim by your employee.
How We Can Assist
At Miller Sockhill Lawyers we can assist small business employers comply with the upcoming changes with the ‘right to disconnect’. Our services include:
- Drafting and reviewing workplace policies.
- Updating employment contracts.
- Providing legal advice on compliance and dispute resolution.
The above is general information only, and it is important that advice be sought about your specific circumstances. For expert advice, please contact our friendly team at Miller Sockhill Lawyers on 07 5444 4750.