Reminder for small businesses: the right to disconnect is now in place

Early data has shown the benefits of the introduction to the right to disconnect being that workplaces are experiencing reduced absenteeism and an increase in workplace morale. Introduced through the Fair Work Amendment (Right to Disconnect) Bill 2023 (Right to Disconnect Bill), this landmark change empowers employees to unplug outside of work hours without fear of repercussions. Now, as small businesses across the country prepare for its adoption, the question is, what will this mean for a better work-life balance and employers alike?

Our experts break down what the Right to Disconnect means and explore how the implementation will affect small businesses going forward.

So, what is the ‘Right to Disconnect’?

The Right to Disconnect protects employees from adverse action for not engaging with work-related communications outside their hours, as long as the refusal is reasonable. Effective 26 August 2024, all modern awards were updated to include this clause, with small businesses receiving a 12-month delay, making the right applicable to their employees from 26 August 2025.

It provides that employees may refuse to monitor, read or respond to contact unless that refusal is unreasonable. This includes contact, or attempted contact from:

• their employer; or
• a third party wanting to discuss work-related matters.

A third party could include clients, suppliers, staff from other businesses, or members of the public.

However, this right isn’t unlimited. An employee cannot unreasonably refuse contact or attempted contact.

In ascertaining whether an employee’s refusal is unreasonable, and without limiting the factors that may be taken into account, the following should be considered:

• reason for contact or attempted contact;
• how the contact is made;
• how disruptive is the contact or attempted contact;
• the nature of the employee’s role and level of responsibility;
• the employee’s personal circumstances – consider family or caring responsibilities the employee may have; and
• whether the employee is adequately compensated for:
  • being available to perform work during the period they are contacted; or
  • performing additional work outside of their ordinary hours of work.

If there’s a dispute about an employee’s right to disconnect, employers and employees must first attempt to resolve it themselves. Failure to resolve the dispute at the workplace level may necessitate applying to the Fair Work Commission (FWC) for assistance.

How can the Fair Work Commission assist?

Once an application is filed, the FWC can:

• make an order to stop:
  • the employee from continuing to unreasonably refuse contact or attempted contact; or
  • the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact, or from initiating disciplinary or other action against the employee, provided the employee’s refusal to monitor, read, or respond to contact or attempted contact is not unreasonable.
• help both parties resolve the dispute by another means, or
• do all of the above.

What about other employee protections?

Besides the right to disconnect legislation being enshrined in the Fair Work Act 2009 (Cth), employees are also protected under general protections laws. This means that if an employee believes they have been adversely affected, such as unfair disciplinary action, due to exercising their right to disconnect, they may apply to the FWC to resolve the matter as a general protections dispute.

What does this mean for small business employers?

The bottom line is that the introduction of the right to disconnect law represents a crucial advancement in promoting a healthy work-life balance. By proactively updating policies, revising contracts, and providing necessary training, employers can navigate these changes smoothly, ensuring compliance while creating a more balanced and respectful work environment.

Employers and employees are encouraged to discuss out-of-hours contact and set expectations that suit both parties including discussing the following:

1. when the employee is expected to monitor, read, or respond to contact;
2. pay and conditions relating to contact outside ordinary hours; and
3. preferred methods of contact – an employee may prefer to be called on their personal phone, so they aren’t required to monitor work channels.

It’s also recommended that employers implement a right to disconnect policy to ensure all employees are aware of their rights and obligations.

How can Citation HR help?

It’s easy to see how continuously changing legislation can quickly become overwhelming for even the most experienced HR professionals, and with no grey area when it comes to compliance, that’s where having experts in your corner can make all the difference. Citation HR’s industry-leading HR Software is backed by award-winning employment law experts , giving your business complete peace of mind.

Whether you have an established HR function or no HR team, Citation HR’s effective HR support can help your business stay on the right side of the law. With access to unlimited, untimed, and expert advice, staffed by highly qualified professionals to answer your questions 24/7, 365 days a year, you’ll be glad you have Citation HR by your side.

If your business requires guidance on the right to disconnect or other upcoming legislative changes, please contact our workplace relations experts through our 24/7 HR Advice Line.

Not a Citation HR client? To learn more about how Citation HR can support your business and streamline its people management practices, reach out to our friendly team for a confidential chat here.

About our author

Tuvini Jayakody is a Workplace Relations Advisor at Citation HR. She assists clients with a range of employment relations and compliance matters via the HR Advisory Service. She is currently studying for a Bachelor of Commerce and Laws.