Client Alert: Right to Disconnect

Considering that the Right to Disconnect takes effect on the 26th of August 2025 for small businesses, employers must ensure that their workplace policies and practices are updated. This will reflect employees’ entitlement to refuse unreasonable work-related contact outside of their ordinary hours, while still providing clarity on circumstances where after-hours communication may be deemed reasonable. 

The right to disconnect does not prevent employers from contacting employees outside their working hours. Instead, it creates a workplace right for employees, meaning they cannot be subjected to adverse action (such as dismissal or disciplinary measures) for refusing to engage in after-hours communication. 

What Is the Right to Disconnect? 

Under the Fair Work Act 2009 (Closing Loopholes No. 2), employees now have a statutory right to refuse to monitor, read, or respond to work-related contact outside their regular working hours—unless doing so would be unreasonable. 

The right to disconnect provisions do not remove an employer’s ability to contact employees rather, it touches on an employee’s ability to respond to the employer.  

Defining “Working Hours” 

The Act does not define “working hours.” However, this term is understood to mean an employee’s ordinary hours, plus the reasonable additional hours contemplated by the Fair Work Act. Importantly, expectations about working hours may also be shaped by: 

• Employment contracts, 

• Position descriptions, 

• Awards and enterprise agreements, and 

• Workplace policies and practices. 

  
  

This right applies to contact from both employers and third parties, such as clients, customers, and suppliers. “Contact” is not exhaustively defined, but clearly covers modern communication channels including phone calls, emails, text messages, and messaging platforms such as WhatsApp. 

When will an employee’s refusal be unreasonable?  

Firstly, what does “Unreasonable” mean? 

An employee’s refusal to monitor, read or respond to contact or attempted contact will be unreasonable if the contact or attempted contact is required by law. If the contact or attempted contact is not required by law, certain matters must be considered when deciding whether the employee’s refusal is unreasonable. These include: 

The right to disconnect is not absolute. Whether a refusal is unreasonable depends on the context. Relevant factors include: 

• The reason for the contact, 

• The mode and timing of contact, and the disruption caused, 

• Whether the employee is compensated for additional availability or overtime, 

  • to be available to work when the contact (or attempted contact) is made, or

  • to work outside their ordinary hours

• The nature of the employee’s role and responsibilities, and 

• The employee’s personal circumstances, including family and caring responsibilities. 

  
  

Other considerations may also apply, such as contractual terms, the nature of the business, or whether the employer provided adequate notice that a response would be required outside ordinary hours. 

Who Has the Right to Disconnect?  

The right to disconnect has been added to all 155 modern awards, applying to all national system employees. However, its application may differ depending on the role. For example, senior executives or employees in on-call positions may be expected to respond in situations where a refusal would be unreasonable. 

What Is a small business? 

A business with less than 15 people is considered a small business. s23 of the Fair Work Act states that a ‘national system employer at a particular time if the employer employs fewer than 15 employees at a time’. This definition encompasses individuals who are part time, full time and casual if they are regular and systematic.  

Practical Implications for Employers 

For small businesses, the commencement date of 26 August 2025 provides a lead time to prepare. Steps to take now include: 

• Reviewing after-hours communication practices and setting clear expectations, 

• Updating policies to reflect when after-hours contact is considered reasonable, 

• Providing training for managers on respecting employees’ boundaries, and 

• Ensuring contracts and position descriptions align with the new legal requirements.

How can GML assist? 

The team at Gibson MacNeill Lawyers is here to guide you through these changes and ensure you comply with the new laws. Our experienced team can assist in: 

• Reviewing contracts and providing advice on how to meet the new disconnection requirements; 

• Assist with training of managers for compliance; 

• Developing communication plans and policies; and  

• Assist in interpreting the new amendments apply to your specific industry. 

  
  

If you have any questions or would like assistance navigating these new laws, please don’t hesitate to reach out to the team at Gibson MacNeill Lawyers for tailored legal advice.