The ‘right to disconnect’ came into effect for non-small business employers last year and now comes into effect for small business employers from 26 August 2025.
A small business employer is defined by section 23 of the Fair Work Act 2009 (Cth) as an employer who employs fewer than 15 employees at that time. This right gives an employee a right to refuse to respond to contact from their employer, outside of work hours, unless the contact is deemed to be reasonable.
Whilst this right has been widely publicised, there is quite a large amount of misinformation associated with it. One of the key takeaways is that it does not prevent an employer from contacting an employee outside their normal working hours. In fact, it simply requires the employer to consider certain issues before making contact and giving thought to things like:
- the business need for the contact,
- the impact on the employee with regard to the employee’s personal circumstances (eg caring/family responsibilities),
- the method for the communication (eg SMS, phone call, email),
amongst other things. The key trigger for an issue under the right to disconnect provisions is an employee’s refusal to respond.
In light of the above, management are going to play the key role in managing this new right. It is crucial that managers are aware of, trained in, and consider their obligations under the new right to disconnect provisions. Specifically, some key considerations for employers to take into account now, include:
- Who in your organisation is or might be expected to be responsive outside their ordinary hours?
- What does this person’s employment contract say?
- What’s their pay premise? How has this been applied in practice?
- What are your genuine operational needs? And are these ‘needs’ or ‘wants’?
- What are the communication habits of employees (email, SMS, Teams, etc)? Should you establish protocols?
- Communication is crucial – do you have a communication policy? What do you want to achieve with a policy and why?
Have questions about the right to disconnect or the right communication approach to put into your organisation’s policies? Reach out to our team to discuss.