Quick answer: Since 26 August 2025, employees of small businesses (fewer than 15 staff) have had the legal right to refuse to monitor, read, or respond to work contact outside their working hours, unless that refusal is unreasonable. It doesn’t ban you from contacting staff after hours — it means you need a genuinely reasonable reason when you do, and staff can push back without it being treated as misconduct.
What “Small Business” Actually Means Here
For this rule, you’re a small business employer if you have fewer than 15 employees at a given time — headcount, not full-time equivalents, and it includes employees of any associated entities you have. If you cross 15 employees, you stop being covered by the small business threshold and the standard rule (which has applied to bigger employers since 26 August 2024) applies to you instead. It’s worth checking your headcount periodically if you’re growing, rather than assuming your business stays “small” indefinitely.
What the Right to Disconnect Actually Does
It gives employees the right to refuse to monitor, read, or respond to contact — or attempted contact — from you or a third party like a client, outside their ordinary working hours, unless the refusal is unreasonable. Crucially, this isn’t a communications blackout. You’re not legally barred from calling, texting, or emailing staff after hours. What changes is that an employee can decline to engage with it without that refusal being treated as a performance or conduct issue, provided their refusal is reasonable.
What Makes a Refusal “Unreasonable”
The law sets out factors to weigh, not a strict checklist:
- Why you’re making contact, and how urgent or important it actually is
- How the contact is made — a two-line text is different to a demanding phone call at 9pm
- Whether the employee is paid an allowance or salary loading specifically for being available outside hours
- The employee’s role and seniority — a manager on call is a different situation to a junior staff member
- The employee’s personal circumstances, including family or caring responsibilities
- Whether the contact is legally required (if it is, refusal is not reasonable)
In practice, a genuine emergency, a rostering issue that affects the next shift, or contact from someone with an on-call allowance will usually be considered reasonable. Routine after-hours emails expecting same-night replies, or contact with no real urgency, are the kind of pattern that’s more likely to be found unreasonable if it’s ever tested.
What Happens If There’s a Dispute
Disputes have to be raised and genuinely attempted to be resolved at the workplace level first — talk to the employee, and try to sort it out directly. If that doesn’t work, either party can apply to the Fair Work Commission, which is required to deal with it as soon as reasonably practicable and generally within 14 days. If the Commission finds the contact was unreasonable and the employer is likely to keep pushing it or take disciplinary action over a refusal, it can make orders stopping that — including preventing disciplinary action tied to a reasonable refusal.
What Small Business Owners Should Actually Do
- Think about who genuinely needs to be contactable after hours — and pay an on-call or availability allowance if that’s a real expectation of the role, rather than assuming it by default.
- Reserve after-hours contact for things that are actually time-sensitive. A rostering emergency is different to “just checking in.”
- Don’t discipline someone for a reasonable refusal. If an employee declines to respond to a non-urgent message at 8pm, that’s not a performance issue under this rule.
- Talk to your team about expectations. A short, plain-language conversation about when and why you might reach out after hours avoids most disputes before they start — you don’t need a formal policy document to comply, just a reasonable, consistent practice.
Source: Fair Work Ombudsman – Right to disconnect.
Final Thoughts
The right to disconnect isn’t about cutting small businesses off from their staff after hours — it’s about making sure after-hours contact has a genuine reason behind it, and that staff aren’t punished for reasonably switching off. If you’re setting up your team for the first time, build this into your expectations from day one alongside the rest of your obligations — see our guide to hiring your first employee for the fuller compliance picture.
Frequently Asked Questions
When did the right to disconnect start for small businesses in Australia?
The right to disconnect started for small business employees (employers with fewer than 15 employees) on 26 August 2025. It had already applied to larger employers since 26 August 2024.
Can I still contact my staff after hours?
Yes. The right to disconnect doesn’t ban after-hours contact — it means an employee can refuse to monitor, read, or respond to that contact without it being unreasonable, and you can’t discipline them for a reasonable refusal.
How is ‘small business’ defined for the right to disconnect?
An employer with fewer than 15 employees at a given time, including employees of any associated entities. If your headcount reaches 15 or more, the small business threshold no longer applies and the standard right to disconnect rule applies instead.
What happens if an employee and employer disagree about the right to disconnect?
The dispute must first be genuinely attempted to be resolved at the workplace level. If that fails, either party can apply to the Fair Work Commission, which must deal with it as soon as reasonably practicable, generally within 14 days, and can make orders if the contact is found to be unreasonable.
Related: Payday Super Is Now Law: What Employers Must Do — the other major 2026 compliance change for Australian small businesses.