The right to disconnect
The right to disconnect laws were introduced into sections 333M and 333N of the Fair Work Act 2009 (Cth) on 26 August 2024 for most businesses, and on 26 August 2025 for small businesses.
Under these provisions, an employee may refuse to monitor, read or respond to contact, or attempted contact, from their employer or a third party (e.g. a client, supplier or colleague), where the contact relates to their work and is outside their working hours, unless that refusal is unreasonable. A standard ‘right to disconnect’ term has also been incorporated into all Modern Awards. Until now, these laws have remained untested.
In the first substantive rulings on the right to disconnect, Kalleske v Mcguire [2026] SAET 106 and Elliot v Mcguire [2026] SAET 107, the South Australian Employment Tribunal has found that an Adelaide hairdressing salon did not breach its apprentices’ right to disconnect, despite sending them TikTok and Snapchat videos and other out-of-hours messages that were ‘unpleasant and intrusive’.
Facts
Two apprentices working in a salon brought separate applications against the salon owner, alleging serious contraventions of the Hair and Beauty Industry Award 2020, including breaches of the right to disconnect term.
Ms Elliot gave evidence that the salon owner frequently sent her TikTok and Snapchat videos, mostly about her social life and sometimes about non-urgent work matters, outside working hours. She alleged that, if she did not respond before her next shift, the salon owner ‘would be in a bad mood and would ignore her’. Ms Elliot was also asked to take the salon’s mobile phone home, unpaid, over a long weekend to take messages though she said she did not actively monitor it.
Ms Kalleske described a ‘consistent pattern’ of contact outside working hours, including on her days off, while she was at trade school, and while she was unwell or on leave. She claimed that this contact ‘created an ongoing expectation of availability’ and contributed to stress.
Ms Kalleske said the salon owner continued to call and message her even after she supplied medical certificates confirming she was undergoing urgent medical treatment and requested privacy while she recovered. The salon owner also attempted to contact Ms Kalleske’s mother in an effort to obtain information about her condition.
Decision
The Tribunal ultimately found that neither employee established a breach of the right to disconnect laws.
The key distinction drawn was between an employer communicating in an unwelcome way, and an employer preventing an employee from disconnecting. It was held that ‘the issue is not the same as whether [the owner] repeatedly communicated with the [apprentice] outside of work, or that it was unpleasant and intrusive, or that [she] felt pressure to respond’.
The Tribunal considered that the right to disconnect is a right to ignore, and a breach turns on whether the employer directly or indirectly prevented the worker from exercising that right, not on the volume or nature of the contact itself.
While the salon owner’s apparent disapproval at unanswered messages did put some pressure on the apprentices, there was no other consequence flowing from a failure to respond. Ms Elliot had also been able to resist the request to monitor the salon phone, apparently without consequence. While the conduct had discouraged the apprentices from ‘always disconnecting’, they were not prevented from disconnecting.
On that basis, despite the unreasonable, unpleasant and intrusive contact out of hours, both employees failed to establish the salon owner breached the right to disconnect laws.
Key takeaways for employers
- These rulings suggest the bar for a contravention of the right to disconnect laws is higher than simply showing an employer’s after-hours contact was unwanted or excessive.
- An employee’s subjective sense of pressure, without some demonstrable consequence attaching to non-response, will not by itself establish a breach.
- A right to disconnect breach requires the employer to have prevented an employee from ignoring after-hours contact, not merely to have made contact that was unwelcome, frequent or socially intrusive.
- The Tribunal’s focus on ‘consequence’ leaves open the possibility that a different result may follow where an employer’s disapproval translates into consequences for an employee failing to respond outside work time.
If you have any questions about the issues raised in this article or would like assistance with matters related to the right to disconnect, please contact a member of our workplace relations and safety team.
