Small Business Employers and the Right to Disconnect

As reported in our newsflash Employment Law Changes Commencing in August 2024, employees of large businesses have had a right to disconnect since 26 August 2024.  On 26 August 2025, this right came into force for employees of small businesses (an estimated 5.4 million Australian employees). This newsflash provides an outline of the key changes for small business employers. 

1.    What is a Small Business

A business that employs fewer than 15 people (see s23 Fair Work Act 2009)  

2.    What is the Right to Disconnect

The Fair Work Legislation Amendment (Closing the Loopholes No 2) Act 2024 gave employees a right to refuse contact from their employer outside their working hours, unless the refusal is unreasonable. While disconnected, employees can refuse to monitor, read or respond to contact or attempted contact from their employer.

Whether an employee’s refusal is unreasonable will depend on different factors, including:    

•      The reason for the contact;

•      Whether the employee is compensated for being available in the period when the              contact is made or working additional hours outside their ordinary hours;

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

•       The employee’s personal circumstances such as family or caring responsibilities.

An employer cannot take adverse action against an employee for exercising the right to disconnect, unless the employee’s refusal was unreasonable.

3.    What Small Business Employers Should Do

The right to disconnect will place a burden on small business employers, many of whom employ only a very small number of employees and who rely on those employees to be able to manage their operations.

This is particularly the case in the transport sector, where employees such as operations staff, engineers and pilots can need to be contacted out of their scheduled work hours to ensure schedules can be maintained. 

In order to adapt to these new requirements, small business employers should:

• Undertake a review of the processes for contacting employees out of hours to ensure it is clear when employees are required to respond to work communications out of hours and when those communications can be dealt with during rostered working hours, and provide any necessary training to managers who may be required to contact employees out of hours;

• Review employee contracts, policies and procedures to make sure those documents adequately deal with how and when employees may be contacted outside of work hours; 

• Where it is critical that employees are available to be contacted out of hours, consider an arrangement where those employees are placed on standby or paid an on call allowance to ensure they are available and required to respond at the times when they may need to be available;

• Where appropriate, suppliers or clients may need to be advised about response times for enquiries made out of hours.

Contacts 

Keira Nelson
+ 61 2 9230 9440
keira.nelson@nortonwhite.com