The right to disconnect now covers small business

The right to disconnect has applied to larger employers since 2024. From 26 August 2025 it also covers small business, which means almost every employer in NSW now has to deal with it. This guide explains what the right is, what it does not do, and what small business owners should do about it.

What the right to disconnect is

The right to disconnect is a workplace right under the Fair Work Act 2009 (Cth). It lets an employee refuse to monitor, read, or respond to contact from their employer, or from a third party where the contact relates to work, outside their working hours, unless that refusal is unreasonable.

The key point to understand is what it does not do. It does not ban you from contacting your staff after hours. You can still send the message. What changes is that your employee generally does not have to respond until their next working hours, unless it would be unreasonable for them to hold off.

When is a refusal unreasonable

Whether a refusal is unreasonable depends on the circumstances. The factors that are weighed include the reason for the contact and how urgent it is, how the contact is made and how disruptive it is, the employee's role and level of responsibility, their personal circumstances including family or caring responsibilities, and whether they are compensated for being available outside hours.

Some practical examples make the line clearer. A non-urgent email at 9:30pm about rescheduling a meeting can generally wait until the morning, so ignoring it is reasonable. A late-night safety alert to a tradesperson, or an urgent request to a paid on-call employee whose role requires availability, is a different matter, and ignoring it may well be unreasonable.

What this means for small business owners

For most small businesses the change is manageable, but it is worth getting ahead of. In our experience the problems come from unwritten expectations, where staff feel they must reply to everything immediately and nobody has ever said otherwise. The reform is a good prompt to make those expectations explicit.

The sensible steps are straightforward. Think about whether your business genuinely needs after-hours contact, and for which roles. Where a role does require availability, say so in the employment contract and consider how it is compensated, because paid availability changes what is reasonable. For everyone else, set a clear expectation that non-urgent out-of-hours messages can wait, which protects both your staff and you.

How disputes are handled

If a disagreement arises, the first step is for the employer and employee to try to resolve it directly. If that does not work, the Fair Work Commission can deal with it, and can make orders, including stop orders. An employer who repeatedly demands responses to non-urgent out-of-hours contact risks a dispute and, potentially, penalties. An employer who considers an employee is refusing contact unreasonably can also take the matter to the Commission.

Where we can help

We help small business clients update employment contracts and workplace policies so expectations around availability are clear and defensible, and so that roles which genuinely need after-hours availability are set up correctly. Getting this right now is far easier than untangling a dispute later. If your contracts predate these changes, they are worth a look.

Frequently asked questions

When did the right to disconnect start for small business? On 26 August 2025, for businesses with fewer than 15 employees. Larger employers have had it since 2024.

Does this mean I cannot contact my staff after hours? No. You can still make contact. Your employee generally does not have to respond until working hours, unless a refusal would be unreasonable.

What makes a refusal unreasonable? Factors include how urgent the contact is, the employee's role, their personal circumstances, and whether they are paid to be available.

What should I do as an employer? Set clear expectations, put after-hours availability into contracts for roles that need it, and update your policies. We can help with that.

Keep reading

• Corporate and commercial law
• Key clauses every commercial contract should include
• The proposed ban on non-compete clauses: what employers should know

This article contains general information only and is not legal advice. For advice about your situation, please contact us. Liability limited by a scheme approved under Professional Standards Legislation.