Here’s What That Actually Means for Your Business.
FAIR WORK ACT – EFFECTIVE 26 AUGUST 2025 FOR SMALL BUSINESSES
The Problem with ‘Just Sending a Quick Message’
From 26 August 2025, the Right to Disconnect applies to small businesses – those with fewer than 15 employees. Larger businesses became subject to the provision from 26 August 2024. The right allows employees to refuse to monitor, read, or respond to work-related communications outside their rostered or paid hours, unless that refusal is unreasonable.
For founders who run their businesses by staying constantly connected and expecting the same of their teams, this is a direct operational challenge. The instinct to send a message at 9 pm because a client issue came up, or to expect a Monday-morning response to a Friday-evening email, is now subject to legislative constraint.
Research found that 74% of businesses still lacked a Right to Disconnect policy well after the law took effect for larger employers. That gap is now closed. Every small business in Australia is subject to this obligation.
What the Law Actually Says
The Right to Disconnect does not prohibit after-hours contact entirely. The relevant test is whether an employee’s refusal to respond is unreasonable. The Fair Work Commission, when adjudicating disputes, will consider:
- The reason for the contact – genuine emergency versus routine follow-up
- Whether the employee is compensated or rostered to be available outside standard hours
- The nature of the employee’s role and level of seniority
- The method and frequency of contact
- Whether the employee is required to perform additional work or simply to acknowledge receipt
What this means for SMEs is that managing the right to disconnect is inherently a people systems issue – it requires documented expectations, clear policies, and manager training.
The Specific Risks for SMEs Without Systems
The businesses most exposed to right to disconnect disputes are those where:
- After-hours contact is embedded in the culture and happens without conscious decision-making
- There are no documented expectations about availability, response times, or what constitutes an emergency
- Managers have never been trained on the distinction between what is reasonable and what is not
- Employment contracts do not reflect actual hours or on-call requirements that might justify after-hours contact
A dispute brought to the Fair Work Commission where an employer has no policy, no documented expectations, and a pattern of routine after-hours messaging is a dispute the employer is likely to lose.
Building the System – Three Required Components
- A written Right to Disconnect policy. This defines what constitutes a work-related communication, what hours are considered out-of-hours for each role, what counts as a genuine emergency, and how disputes will be handled.
- Employment contracts that reflect reality. If certain roles genuinely require after-hours availability, that requirement needs to be documented in the employment contract with corresponding remuneration or allowance. A blanket expectation buried in culture rather than in contract is unenforceable and creates liability.
- Manager training. The policy is worthless if managers continue to send messages at 10 pm because that is when they do their thinking. Training must address both the legal standard and the practical question of how managers adjust their own communication habits.
The Talent Angle
Beyond compliance, this is a talent issue. Candidates and employees evaluate workplace culture partly through observable behaviours – and after-hours messaging is one of the most visible signals a business sends about how it treats people. SMEs competing for candidates who have options will increasingly be evaluated on whether their culture reflects stated boundaries between work and life.
Building a Right to Disconnect framework that is genuinely respected – not just documented on paper – is a differentiation point in talent attraction, not just a compliance requirement.
SOURCES
Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.
Fair Work Ombudsman, legislation changes page (fairwork.gov.au).
Prosper Law: “Employer Guide to Fair Work Changes from 1 July 2025.”
HR Leader: “Right to Disconnect – what businesses need to know,” January 2025.