Small business employees now have a legal right to switch off from work outside rostered hours and a clearer pathway to move from casual to permanent employment, with both reforms starting for workplaces with fewer than 15 staff on 26 August.
The “right to disconnect” was written into the Fair Work Act under the federal government’s Closing Loopholes laws and took effect for larger employers in August 2024. From 26 August, employees in small businesses can refuse to monitor, read or respond to contact, or attempted contact, outside their working hours unless that refusal is unreasonable. The rule applies to contact from an employer or a third party, such as a client.
Whether a refusal is unreasonable depends on the circumstances. Factors that must be considered include the reason for the contact; the nature of the employee’s role and level of responsibility; the employee’s personal circumstances, including family or caring responsibilities; how the contact is made and how disruptive it is; and any relevant extra pay or compensation the employee receives for working additional hours or remaining available after hours.
The Fair Work Ombudsman (FWO) has published short explainer videos and a webinar to help small business employers and workers understand the changes.
Fair Work Ombudsman Anna Booth urged workplaces to set clear expectations about out‑of‑hours contact as the provisions take effect for small businesses.
“We hope that people working in larger businesses have already had conversations about out of hours contact and set expectations in the context of their workplace and the employee’s role; now it’s time for small business employers and employees to have that conversation,” Ms Booth said.
“It’s important to remember the right to disconnect does not prohibit employers from contacting their employees, nor does it prevent employees from contacting one another, including across time zones.
“We encourage workplace participants to educate themselves on the right to disconnect and adopt a commonsense approach.
“Like most employment matters, any dispute should first be discussed and sought to be resolved at the workplace level. Workers can be represented by a union if they are a member, and they want to be represented.
“If that resolution does not occur, the Fair Work Commission — not to be confused with the Fair Work Ombudsman — can deal with disputes regarding the right to disconnect.”
The Fair Work Commission (FWC) can make orders or deal with disputes in other ways, including ordering an employee to stop refusing reasonable contact or directing an employer to stop certain actions. All modern awards now contain a right to disconnect clause, and some awards set out industry‑specific rules. Employees covered by an enterprise agreement should also check whether their agreement includes right‑to‑disconnect terms. The right to disconnect is a workplace right, meaning employers must not take adverse action against an employee for exercising it.
Separately, an “employee choice pathway” to full‑time or part‑time work is now open to eligible casuals in small businesses. Casual employees who have been employed for at least 12 months and believe they no longer meet the definition of a casual can notify their employer in writing that they wish to convert to permanent employment. An employer may refuse only if the employee still meets the casual definition, there are fair and reasonable operational grounds, or converting would breach a legally required recruitment or selection process.
The pathway has been available since February 2025 to eligible casuals in larger businesses (15 or more employees), with a six‑month employment threshold. Further guidance, including when a casual cannot give notice and when refusal may be reasonable, is available on the FWO website.
