Right to Disconnect: What Australian Small Businesses Must Do Now

If you run a small business in Australia and you've been calling or texting your staff after hours, you may now be breaking the law.

The right to disconnect — introduced through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 — became enforceable for small businesses (fewer than 15 employees) on 26 August 2025. Larger employers had already been subject to it since March 2024.

This is one of the most significant changes to Australian employment law in years, and many small business owners still don't know what it means for them. This guide explains what the law actually says, what you can and can't do, and how to make sure your business is compliant.

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What Is the Right to Disconnect?

The right to disconnect is now enshrined in the Fair Work Act 2009 (s.333M–s.333P). In plain terms, it gives employees the right to refuse to monitor, read, or respond to contact — or attempted contact — from their employer outside of their ordinary working hours, unless that refusal is unreasonable.

This applies to contact from:

• The employer directly
• A third party contacting the employee on behalf of the employer (for example, a client the employer directed to call the employee)

It covers all forms of contact: phone calls, text messages, emails, messaging apps (WhatsApp, Slack, Teams), and any other communication method.

Importantly, the right to disconnect does not make it illegal for you to attempt contact with an employee outside hours. What it does is protect the employee from any adverse action for choosing not to respond.

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When Did This Apply to Small Businesses?

The rollout was staged:

| Employer size | Right to disconnect applies from | |---|---| | 15 or more employees | 26 August 2024 | | Fewer than 15 employees | 26 August 2025 |

If your business has fewer than 15 employees, you have been subject to this law since August 2025. If you haven't updated your workplace practices yet, now is the time.

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What the Law Actually Prohibits

The right to disconnect does not ban all after-hours contact. It prohibits employers from taking adverse action against an employee who reasonably refuses to respond to after-hours contact.

Adverse action includes:

• Dismissing the employee
• Reducing their pay or hours
• Demoting or transferring them
• Treating them less favourably in any way
• Threatening any of the above

This means you cannot discipline, penalise, or pressure an employee for not answering your 8pm call or replying to your Saturday morning email — provided their refusal is not unreasonable.

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What Makes a Refusal "Unreasonable"?

This is the critical nuance. Not every refusal to respond is automatically protected. The Fair Work Act sets out factors the Fair Work Commission considers when determining whether a refusal is unreasonable:

1. The reason for the contact — Is it a genuine emergency or urgent business need?
2. The method and disruption — A phone call at midnight is more disruptive than an email sent after hours to be read the next morning.
3. Whether the employee is compensated — If the employee is paid a higher rate, an on-call allowance, or their award specifically contemplates after-hours contact, refusal is more likely to be unreasonable.
4. The employee's role and responsibility level — A senior manager or on-call worker may have different obligations than a junior part-time casual.
5. The employee's personal circumstances — For example, caring responsibilities that make after-hours contact particularly disruptive.

In practice: a café owner texting a chef at 9pm to cover a sick shift tomorrow morning occupies a greyer zone than a manager calling an admin assistant at 10pm to ask where a file is saved.

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Which Industries Are Most at Risk?

Certain sectors have a culture of after-hours communication that puts them at higher compliance risk:

Hospitality and Retail

Rostering changes, last-minute shift coverage, and customer complaints often spill into evenings and weekends. If you're contacting staff via group chats or direct messages outside their rostered hours and expecting responses, you need to review this practice.

Construction and Trades

Project updates, site changes, and subcontractor coordination frequently happen outside standard business hours. Subcontractors may not be covered by the right to disconnect (they are not employees), but your directly employed workers are.

Healthcare

Clinics and allied health practices sometimes contact reception or administrative staff after hours for scheduling changes. Clinical staff with on-call obligations may have carve-outs in their award, but this must be properly documented.

Professional Services

Accountants, lawyers, and consultants often work in environments where client urgency bleeds into after-hours contact expectations. If you're an SMB in this space, review whether your team roles carry genuine after-hours obligations or whether contact has simply become normalised without compensation.

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What You Need to Change in Your Business

Complying with the right to disconnect isn't just about what you do — it's about what your policies and culture communicate to staff.

1. Review your employment contracts

If your contracts include clauses expecting after-hours availability without corresponding compensation or allowances, update them. Any clause requiring employees to remain contactable outside ordinary hours must now be backed by either:

• A specific modern award provision
• An applicable enterprise agreement clause, or
• An additional payment or allowance that reflects the obligation

2. Update your workplace policies

Add a right to disconnect policy or clause to your employee handbook or policies document. It should:

• Acknowledge the employee's right to refuse unreasonable after-hours contact
• Define what constitutes a genuine emergency for your business
• Specify which roles (if any) have legitimate after-hours obligations and why
• Set expectations about response timeframes for non-urgent communications

3. Brief your managers

In small businesses, "management" is often the owner. But if you have team leaders or supervisors, make sure they understand that after-hours contact must have a genuine purpose, and that the default expectation should be that employees are unavailable outside their hours.

4. Check your awards

Many modern awards already contain provisions about being contactable, on-call allowances, and overtime. Understanding your award obligations is essential — if an employee is already compensated for after-hours availability under their award, their refusal to respond may be unreasonable. But if there's no such provision and no additional pay, the law is more likely to protect them.

If you're unsure which award applies to your employees, Reguladar's dashboard maps your workforce to the applicable modern award and flags relevant provisions automatically.

5. Set up communication systems that respect working hours

Practical steps that reduce compliance risk:

• Use email scheduling features to send messages during business hours
• Configure Slack or Teams to show your own "do not disturb" hours as the default
• Avoid using WhatsApp for work communications where possible — it creates pressure to respond that email doesn't
• Create a documented protocol for genuine emergencies (e.g., a specific contact number, clearly defined circumstances)

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How Disputes Are Resolved

If an employee believes their right to disconnect has been violated, they can apply to the Fair Work Commission (FWC) for a dispute resolution order.

The FWC can:

• Make an order requiring the employer to stop the conduct
• Deal with the dispute through conciliation or arbitration

If an employee has been subject to adverse action for exercising their right to disconnect, they may also have general protections claims under the Fair Work Act. Civil penalties can apply to employers who take adverse action against employees exercising a workplace right, with maximum penalties reaching tens of thousands of dollars per contravention.

The FWC has noted it will take a pragmatic approach, recognising that the line between reasonable and unreasonable contact is context-dependent. However, employers who have no policy in place, who have taken disciplinary action against employees for not responding after hours, or who have created a culture of expected availability without compensation will be in a difficult position if a dispute arises.

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What Reguladar Tracks for You

Staying on top of right to disconnect obligations is just one piece of the employment law puzzle. Reguladar gives Australian small business owners a single dashboard that:

• Maps your workforce to the applicable modern award, so you always know which after-hours provisions apply
• Flags changes to the Fair Work Act and other employment legislation as they affect your business specifically
• Alerts you to upcoming obligations — from payslip requirements to leave entitlement reviews
• Tracks compliance deadlines across employment law, WHS, tax, and privacy in one place

You shouldn't need a lawyer on retainer to run a compliant small business. Reguladar is designed to be your compliance layer — always on, always current.

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The Bottom Line

The right to disconnect is now law for every Australian employer, including small businesses with fewer than 15 employees. It doesn't ban after-hours contact, but it does mean your employees have a protected right to switch off — and you cannot penalise them for it.

The practical steps are straightforward: update your contracts and policies, brief your team, and audit your after-hours communication habits. The risk of not doing so is a Fair Work dispute and, in the worst case, a general protections claim that could cost you significantly more than a contract review.

Ready to get your employment compliance in order? Try Reguladar's free compliance check and get a personalised dashboard showing exactly which obligations apply to your business — and when.