Right to disconnect and employee choice pathway for casual employees

From 26 August 2025, employees of small business employers (i.e. employers with fewer than 15 employees) will have the following rights:

• the right to disconnect and
• for casual employees, the right to notify their employer that they want to become a full-time or part-time employee if they meet certain criteria (known as the ‘employee choice pathway’).

These rights have been in place for larger businesses since 26 August 2024.

Right to disconnect

The Fair Work Act 2009 (FW Act) and modern awards include right to disconnect provisions.

The right to disconnect allows employees to refuse to monitor, read or respond to contact or attempted contact from an employer or third party (such as a client or supplier), if the contact relates to the employee’s work and it is outside of the employee’s working hours, unless the employee’s refusal is unreasonable.

The Fair Work Act 2009 (FW Act) sets out the following factors that are relevant in determining whether a refusal is unreasonable:

• the reason for the contact or attempted contact,

• how the contact or attempted contact is made, and the level of disruption caused by the contact,

• whether the employee is compensated to remain available to perform work during the period in which the contact or attempted contact is made, or for working additional hours outside of their ordinary hours of work,

• the employee’s role and level of responsibility,

• the employee’s personal circumstances, including family or caring responsibilities.

Some modern awards specify situations in which it is reasonable for an employer to require an employee to monitor, read or respond to contact out of hours. An example is the Manufacturing and Associated Industries and Occupations Award 2020, which allows an employer to require an employee to be responsive if the employee is paid to be on standby and the contact relates to a requirement to perform work during the standby period.

The right to disconnect provisions do not prevent employers from attempting to contact an employee outside work hours. However, employers cannot require employees to check or respond to messages outside of work hours if it is reasonable for the employee to refuse.

Employee choice pathway

From 26 August 2025, the ‘employee choice pathway’ replaces the previous casual conversion process under the National Employment Standards in the FW Act.

Under the employee choice pathway, if a casual employee has been employed by a small business employer for 12 months, they can choose to change their employment status to full-time or part-time if they believe that they no longer meet the definition of ‘casual employee’ in the FW Act.

An employee is a casual employee if:

• there is no firm advance commitment to continuing and indefinite work, taking into account a number of factors, including the real substance, practical reality and true nature of the employment relationship, and

• they are entitled to receive a casual loading or specific casual pay rate.

Casual employees can write to their employer to notify them that they would like to change their employment status, and employers are required to respond within 21 days either accepting the change or refusing the change.

Before responding, the employer must consult with the employee, which includes discussing the impact the change will have on the employee and what other changes will occur if the employer accepts the notification.

If the employer accepts the notification, they will need to respond in writing stating:

• what the new employment status will be (for example, part-time or full-time),

• the employee’s new hours of work, and

• when the change will take effect.

If the employer rejects the notification, they must include the reasons for the refusal.

The employer can refuse the employee’s notification if any of the following apply:

• the employee still meets the definition of a casual employee.

• there are fair and reasonable operational grounds for not accepting the notification, such as if substantial changes would be required to the way that work in the business is organised to allow the employee to convert.

• there would be significant negative impacts on the operation of the business.

• accepting the change means the employer is not complying with a recruitment or selection process required by law.

Disputes about the right to disconnect and the employee choice pathway

The FW Act and modern awards contain processes for resolving disputes about the right to disconnect and the employee choice pathway.

In summary, employers and employees must first try to resolve a dispute by discussions at the workplace level. If the dispute cannot be resolved that way, then a party to the dispute can refer it to the Fair Work Commission (FWC).

The FWC can assist the parties to resolve the dispute themselves by methods including conciliation and mediation. If that fails, then the FWC can arbitrate the dispute and impose a binding outcome on the parties.

Employers and employees are entitled to be represented during disputes about the right to disconnect and the employee choice pathway. For example, an employee may choose to be represented by their union, or an employer may be represented by an employer association. If a party is seeking to be represented by a lawyer in FWC proceedings, they must obtain the FWC’s permission.

Key take aways

• Before attempting to contact employees out of hours, employers should carefully consider whether the contact is really necessary, or if it can wait until the employee’s next shift.
• If it is reasonable for an employee to refuse to monitor, read or respond to out of hours contact, then the employer cannot take disciplinary action against the employee for failing to do so.
• Employers should be prepared to respond to a notification from a casual employee seeking to change their status from casual to full-time or part-time within 21 days. This includes allowing time to consult with the employee and provide a written response and, if thinking of refusing the request, considering whether there are any legitimate grounds to do so.
• The Fair Work Commission has the power to arbitrate disputes about the right to disconnect and the employee choice pathway.
• The Fair Work Ombudsman’s website contains free information about the right to disconnect and the employee choice pathway.