The right to disconnect and the 'employee choice pathway' from casual to permanent employment both begin for small business employees today, 26 August.
Small business employers and employees should have conversations about out of hours contact, with the right to disconnect starting today for businesses with less than 15 employees.
The right to disconnect was added into the Fair Work Act as part of the Closing Loopholes laws, and began for employees of businesses with 15 or more employees in August last year.
From today, small business employees have the right to refuse to monitor, read or respond to contact, or attempted contact, outside their working hours unless that refusal is unreasonable. This includes contact or attempted contact from their employer or a third party, such as a client.
Whether a refusal is unreasonable will depend on the circumstances, but certain factors must be considered in making this assessment. Those factors are:
- 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 to the employee; and
- any relevant extra pay or compensation the employee receives for working additional hours or remaining available to work out of hours.
The Fair Work Ombudsman has produced short videos on the right to disconnect for small business employers and employees. Small business employers can also watch a webinar presented by the FWO.
Fair Work Ombudsman Anna Booth said small business employers and employees should talk to each other about out of hours contact and set expectations suited to their specific workplace and the employee's role.
"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 can make orders, or deal with a dispute in other ways. This includes making orders to stop an employee from refusing contact or to stop an employer from taking certain actions.
All modern awards now include a right to disconnect clause, including rules about how it applies in some industries and occupations.
Employees covered by an enterprise agreement can also check whether there are terms in the agreement about the right to disconnect.
The right to disconnect is a workplace right. This means that employers cannot take adverse action against employees because of their rights at work, including the right to disconnect. Adverse action can include for example, being dismissed (fired), being demoted or being overlooked for promotion.
'Employee choice pathway' for changing from casual to permanent employment
The 'employee choice pathway' to full-time or part-time (permanent) employment is now available to eligible casuals employed by small businesses. Eligible casuals of small business employers can notify their employer in writing of their intention to change to permanent employment if they have been employed for at least 12 months and believe they no longer meet the requirements of the casual employee definition.
An employer may only refuse the change to permanent employment if the employee still meets the definition of a casual, there are fair and reasonable operational grounds for not accepting the notification, or accepting the change would mean the employer won't comply with a recruitment or selection process required by law.
See our website for more information about becoming a permanent employee, including detail on when a casual can't provide notice to change to permanent employment and when employers can reasonably refuse the change.
The pathway has been available to eligible casual employees of employers with 15 or more employees since February 2025, if they have been employed for at least 6 months and believe they no longer meet the requirements of the casual employee definition.
