Readers will be aware of the Right to Disconnect provisions that were inserted into all modern awards in August 2024 (with effect from 26 August 2025 for small businesses).
The clause provides that an employee can refuse to monitor, read or respond to contact, or attempted contact that is work-related, outside of their working hours. The exception is where the refusal is unreasonable in the circumstances.
Right to Disconnect is also a right enshrined in the Fair Work Act 2009 (Cth) (FW Act) at section 333M. But what really is the right to disconnect?
What the Right to Disconnect Means — and What It Does Not Mean
Much like the Award provision, section 333M of the FW Act provides employees with the right to refuse to monitor, read or respond to contact or attempted contact from an employer or a third party contact related to their work if the contact is outside the employee’s working hours unless the refusal is unreasonable.
The Fair Work Commission is granted jurisdiction over any disputes regarding the Right to Disconnect in section 333N of the FW Act.
Whether a refusal is unreasonable depends on factors including:
- The reason for the contact or attempted contact;
- How the contact is made;
- The level of disruption caused to the employee;
- If the employee is compensated for working additional hours outside of ordinary hours of work or to remain available to perform work during the hours the contact was made or attempted;
- The nature of the employee’s role and the employee’s level of responsibility; and
- The employee’s personal circumstances (including family or caring responsibilities).
What this means is that employees, depending on the nature of their role and the reason for the contact, may still be expected to monitor, read or respond to contact outside of ordinary work hours, similar to the expectation of reasonable additional work hours pursuant to section 62 of the FW Act.
The Right to Disconnect as a Protected Workplace Right
An employee’s Right to Disconnect is a workplace right protected under Chapter 3 of the FW Act.1 As with other workplace rights, an employer may not take adverse action against an employee for exercising the Right to Disconnect. Adverse actions may include dismissing an employee or negatively altering an employee’s position for exercising a workplace right may be deemed to be adverse action in breach of the FW Act.2
A person also may not coerce or exert undue influence or pressure on another person not to exercise a workplace right or misrepresent another person’s workplace right.3
Although the Right to Disconnect could therefore form part of a General Protections Claim against an employer (including a claim involving dismissal), until now there have not been any notable claims involving the Right to Disconnect.
Kalleske v Mcguire and Elliot v Mcguire
Two recent decisions by His Honour Deputy President Leischke in the South Australian Employment Court (SAET) have clarified, and perhaps limited, the scope of the Right to Disconnect.4 Both decisions involved young workers employed as part-time apprentices at a hair salon, one from 4 July 2024 to 31 October 2025 and the second from 14 November 2024 to 25 November 2025.
The owner of the salon, Ms Mcguire, was held in both instances to have contravened several provisions of the applicable Hair and Beauty Industry Award 2020 (HB Award), including a failure to:
- Pay salon assistant rates for work performed outside the part-time apprenticeships,
- Pay overtime rates,
- Pay Saturday loadings,
- Reimburse training costs,
- Make superannuation contributions,
- Roster in accordance with the HB Award, and
- Allow meal and rest breaks.
Putting the Right to Disconnect to the Test
In addition to that stated above, both apprentices claimed contravention of the Right to Disconnect. They complained Ms Mcguire consistently contacted them outside of workplace hours with an expectation of availability.
Ms Elliot alleged Ms Mcguire frequently sent TikTok and Snapchat videos of her personal life or non-urgent work matters and would be in a bad mood if Ms Elliot did not respond before returning to work – and would ignore her as a result. Once Ms Elliot was asked to take the salon mobile phone home over a long weekend to take messages with no remuneration. Ms Elliot took the phone but said she would not monitor it and she was not asked to take the phone again.
Ms Kalleske alleged she was expected to read and respond to work-related matters that were not urgent or reasonable.5
In both instances, His Honour Deputy President Leischke held that, despite the discomfort and stress caused to both apprentices, Ms Mcguire’s contacts outside of working hours did not contravene the relevant section of the HB Award which states that an, ‘employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act.6
His Honour held that the Right to Disconnect was a right to ‘not monitor or respond to the respondent’s unreasonable communications’ and that Ms Mcguire had not directly or indirectly prevented either apprentice from exercising their right to disconnect even though the contact was unwelcome, unpleasant or intrusive or that the apprentices felt pressured to respond.7
Even though Ms Mcguire was unhappy when the apprentices did not respond to her communications, His Honour found there were no other consequences.
When Ms Eliiot did not monitor the salon mobile over the long weekend, there was no adverse action taken by Ms Mcguire.
The contact may have been unreasonable and regular and unpleasant, but Ms Kalleske was also not subject to any adverse action when she did not respond.
His Honour held that the unreasonable contact itself did not contravene the Right to Disconnect since Ms Mcguire did not prevent the applicants from disconnecting, i.e. she did not take adverse action because they exercised their workplace right not to respond.
What Does This Mean for Employers?
The recent decisions concern part-time apprentices and unreasonable contact. It is the first decision that tests the Right to Disconnect provisions in an Award—it sets a precedent, and is a timely reminder to employers about an employee’s Right to Disconnect.
Is Your Right to Disconnect Policy in Place?
Clear guidelines around out-of-hours communication can help employers and employees understand when contact—and a response—may reasonably be expected.
IRiQ Law has a Right to Disconnect Policy template available to help employers establish clear expectations around out-of-hours communication. We can also tailor the policy to suit the different roles and operational needs of your business.
A Right to Disconnect Policy is one of the essential workplace policies employers should consider as part of their broader compliance framework. View our Essential Workplace Policies flyer to see the range of policy templates available.
Contact our team if you need assistance reviewing, updating or implementing workplace policies for your business.
Footnotes
1 Fair Work Act 2009 (Cth) ss 340, 341.
2 Fair Work Act 2009 (Cth) s 342.
3 Fair Work Act 2009 (Cth) ss 343, 344, 345.
4 Elliot v Mcguire [2026] SAET 107; Kalleske v Mcguire [2026] SAET 106.
5 Kalleske v Mcguire [2026] SAET 106 [29].
6 Elliot v Mcguire [2026] SAET 107 [50]; Kalleske v Mcguire [2026] SAET 106 [56].
7 Elliot v Mcguire [2026] SAET 107 [52]; Kalleske v Mcguire [2026] SAET 106 [58].
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