Small Business and the Right to Disconnect

Introduction

The Right to Disconnect commenced for non-small business employers on 26 August 2024.

On 26 August 2025 the same law will commence for small businesses – those that employee less than 15 employees.

What is the Right to Disconnect

Fair Work Act 2009 s 333M

The Fair Work Act lists the right to disconnect as:

“An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.’’

May an employer contact an employee out of hours

Yes, an employer may contact an employee however consideration needs to be given to:

o   The reason for the contact

o   How the contact is made and how disruptive it is to the employee

o   How much the employee is compensated or paid extra for:

·         Being available to perform work during the period they’re contacted, or

·         Working additional hours outside their ordinary hours of work

o   The employee’s role in the business and level of responsibility

o   The employee’s personal circumstances, including family or caring responsibilities

What is Unreasonable Refusal

There are several considerations when determining if an employee’s refusal to respond to an employer’s contact is unreasonable.  An employee may be in a role where there is an expectation they respond to contact from their employer, for example:

o   The role requires the employee to be on call

o   The employee is rostered for breakdown retrieval

o   The employee is a subject matter expert and must be available on occasion outside normal working hours

o   The employee will be compensated for the time necessary to resolve the issue for which they have been contacted

Disputes

An attempt must be made to resolve a right to disconnect dispute in the workplace. If a resolution is not reached at the workplace level the matter may be escalated to the Fair Work Commission.

The Fair Work Commission may:

o    Make a stop order

o    Deal with the dispute in other ways – mediation or a conference

Or a  combination of both

In summary

1.    From 26^th of August 2025 the right to disconnect law will include small businesses.

2.       From the 26^th of August small business employees will have the right to “refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.’’

3.       Prior to contacting an employee out of hours, the employee should consider points including:

o   The employee’s personal circumstances

o   The employee’s role

o   How disruptive it will be to the employee

o   Remuneration

If you need further advice on the Right to Disconnect of other ER/IR advice please contact the MTA NSW Employment Relations Team on (02) 9019 9097 or [email protected]  

Rules surrounding Employee Choice Pathway - Conversion from Casual to Permanent Employment have also changed. Read more here: Employee Choice Pathway - Conversion from Casual to Permanent Employment | MTA NSW