25/08/2025
The right to disconnect and the “employee choice” pathway for casual employee conversion to permanent employment now applies to small business employers.
These changes were introduced as part of the “closing the loopholes” reforms to the Fair Work Act 2009 (Cth). They have applied to larger employers from 26 August 2024 and from today these arrangements will also extend to small business employers, being employers with less than 15 employees.
What is the right to disconnect?
The right to disconnect is contained in section 333M of the Fair Work Act 2009 (Cth) and has been incorporated as a term in modern Awards. It is intended to provide employees the right not to respond to work related communications, such as phone calls, emails and messages, outside of their ordinary hours of work.
From 26 August 2025 small business employees are able to refuse to monitor, respond or read work related communications received outside of their working hours – unless the refusal is unreasonable. While employers can continue to contact their employees outside of hours, from 26 August 2025 small business employees have a right not to respond or engage with that contact, unless it is unreasonable not to respond.
In considering whether a refusal is unreasonable, consideration is given to the reason for the contact, whether the employee is compensated for the out of hours contact, the nature of the employee’s position and responsibility and the personal circumstances of an employee.
What is the “employee choice” pathway?
The employee choice pathway is a new process for conversion of a casual employee to permanent employment (e.g. full time or part time). The new “employee choice” pathway replaces the previous casual conversion process which placed the onus on employers to make offers of conversion.
From 26 August 2025, employees of small business employers will be able to notify employees in writing under section 66AAB of the Fair Work Act 2009 (Cth) that they consider the nature of their employment no longer meets the definition of casual employment found in section 15A of the Fair Work Act 2009 (Cth), and in effect request conversion to permanent (part time or full time) employment.
This notification can only be given by an employee of a small business if:
- the employee has been employed for at least 12 months;
- there is no active dispute regarding conversion to permanent employment; and
- in the prior 6 months, the employer has not rejected a notification by an employee and there has not been a dispute about a notification.
Employers must respond to a notification in writing within 21 days and must consult with the employee before responding. Including, if the notification is to be accepted, consulting with the employee about their proposed permanent hours and days of work.
Employers can choose not to accept the notification in limited circumstances which include where an employee’s engagement continues to meet the definition of casual or if there are operational grounds not ot accept the notification.
What does this mean for small business employers from 26 August 2025?
From 26 August 2025 small business employers should be mindful of these new rights and should be careful not take adverse action against employee’s who exercise their right to disconnect, or right to request to convert to permanent employment, to avoid a general protections claims. It may also be a good time to review your policies regarding employee contact, rostering and engagement, to ensure they are consistent with this new right.
It is also a good opportunity to consider how you are using casual employees in the workplace and where they may no longer meet the definition of a casual, consider the implications of this and potential “employee choice” notifications that could flow from this.
If you would like any further advice on the right to disconnect or the “employee choice” pathway and what it means for your business, please contact our employment law team.