Right to Disconnect applies to Small Businesses from 26 August 2025

Right to Disconnect

As members are aware, the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth) introduced a new workplace right for employees in the form of a Right to Disconnect.

This right allows an employee to refuse contact from an employer, and work-related parties, outside of their working hours, unless the refusal is unreasonable. The purpose of this new right is to promote work-life balance and allow employees to enjoy time away from work without the need of constantly being ‘on call’.

A breach of this workplace right, or employers taking adverse actions against an employee for reasonably refusing contact, may entitle the employee to lodge a general protects claim against the employer.

When does the Right to Disconnect come into effect?

The Right to Disconnect has been effective for all non-small businesses, meaning a business with 15 employees or more, since 26 August 2024. The right was delayed for all small businesses, meaning a business with less than 15 employees, until 26 August 2025.

This means small business employees will have the workplace right to refuse to engage in work communications outside of their ordinary hours, such as answering calls, responding to messages, or checking emails, unless refusal would be unreasonable in the circumstances.

Exception: If refusal is unreasonable

The Fair Work Act 2009 (Cth) (‘the FWA’) does provide for an exception to refuse contact from the employer outside of working hours, and this would be if the refusal was unreasonable.

The FWA does not define what would be considered as unreasonable refusal, however s333M(3) of the FWA contains a list of factors that must be taken into account for purposing of making this determination. These factors are:

• The reason for the contact
• How the contact is made (e.g. phone, text, email) and the level of disruption it causes to the employee
• Whether the employee is compensated for after-hours availability (e.g. on-call allowance) or working additional hours
• The nature of the employee’s role and the level of the employees responsibility
• The employee’s personal circumstances (e.g. family or caring duties)

This list is not exhaustive and other factors may also be taken into account.

Dispute Resolution

If a dispute arises about the employee’s refusal to monitor, read or respond to contact from the employer, and the employer believes the refusal was unreasonable, s333N of the FWA provides for a dispute resolution procedure.

Parties should attempt to resolve the dispute as follows:

• At workplace level by discussion between the parties;
• If the workplace discussions does not resolve the dispute, either party may apply to the Fair Work Commission for:
  • An order to stop refusing contact, or stop taking certain actions; or
  • Otherwise deal with the dispute.

Recommendations

To ensure that an employer acts in compliance with an employees’ Right to Disconnect, employers should take the following actions:

• Review after-hours communication practices and confirm when contact is necessary. These practices should be reviewed and amended, where necessary, in discussion with employees.
• Develop or update a Right to Disconnect policy, outlining what is reasonable in your business.
• Train managers and site leaders to ensure compliance.
• Update employment contracts to ensure employees are aware what level of contact may reasonably be expected rom them, outside of ordinary working hours.

If you have questions, or require guidance, about an employees Right to Disconnect, please contact the MBA ACT Workplace Relations team at:

📞 (02) 6175 5900​
📧 workplace@mba.org.au