In the first decisions considering Australia’s new right to disconnect laws, the South Australian Employment Tribunal examined whether an employer’s repeated out-of-hours communications with two apprentices breached the relevant award in Elliot v Mcguire trading as Eco Hair Room [2026] SAET 107 and Kalleske v Mcguire trading as Eco Hair Room [2026] SAET 106.
While the Tribunal found the employer’s conduct did not amount to preventing the employees from disconnecting, it drew an important distinction between discouraging and preventing employees from exercising that right. The decisions provide useful guidance for employers navigating out-of-hours communication obligations.
The legislative framework
The Fair Work Act
Section 333M of the Fair Work Act 2009 (Cth) (FW Act) provides that an employee may refuse to monitor, read or respond to contact, or attempted contact, from their employer outside the employee’s working hours, unless the refusal is unreasonable. An equivalent right applies in respect of work-related contact from third parties.
When assessing whether an employee’s refusal is unreasonable, the FW Act requires consideration of factors including:
- why the contact was made;
- how disruptive it was;
- any compensation for being available outside ordinary hours;
- the employee’s role and responsibilities; and
- the employee’s personal circumstances.
It is important to note that section 333M does not prohibit an employer from making contact. Rather, the provision seeks to protect employees who choose not to engage with out-of-hours contact. Further, the right to disconnect is a workplace right for the purposes of Part 3-1 of the FW Act. Accordingly, employers who take adverse action against an employee for exercising that right may face significant legal risks.
The modern award
The FW Act requires modern awards to include a right to disconnect term. In the Hair and Beauty Industry Award 2020, clause 14A, introduced in 2024, provides that an employer must not directly or indirectly prevent an employee from exercising their right to disconnect. The clause also preserves an employer’s ability to make contact in certain circumstances, including to notify an employee of an emergency roster change.
The provision has applied to most employers since 26 August 2024 and to small business employers since 26 August 2025. A breach of clause 14A may constitute a contravention of the Award and may expose an employer to penalties under the the FW Act.
The proceedings
Two hairdressing apprentices employed at Eco Hair Room, a salon in Aldinga, South Australia, brought proceedings against the salon’s owner, Ms Tanika Mcguire. Each alleged that Ms Mcguire had contravened clause 14A.3 of the Award by preventing them from exercising their right to disconnect. The central issue was whether her conduct amounted to “prevention” for the purposes of the clause.
The applicants’ evidence was that:
- the respondent frequently sent TikTok and Snapchat videos outside working hours;
- the communications concerned mostly the respondent’s social life, with some messages concerning non-urgent work matters; and
- where an apprentice did not respond, the respondent would be in a bad mood and would ignore them at work.
In Kalleske, the applicant described a consistent pattern of out-of-hours contact, including on days off, during trade school, and while unwell or on leave.
In Elliot, the applicant was directed, on a single occasion, to take the salon’s mobile phone home over a long weekend to take messages, without additional payment. She agreed to keep the phone safe but declined to monitor it. The direction was not repeated.
The respondent did not appear at either hearing and provided no explanation for such. Accordingly, the applicants’ evidence was unchallenged.
The decision
In Elliot, the Deputy President Lieschke found that:
- the applicant did not always respond to the respondent’s messages, notwithstanding that they felt pressure to do so;
- the applicant was able to decline the respondent’s direction to monitor the salon work phone during her non-working hours, and the direction was not repeated; and
- although the respondent expressed apparent disapproval when her messages were not acknowledged or responded to, and this placed some pressure on a junior employee, there was no further consequence.
His Honour concluded that, while the respondent’s conduct discouraged the applicants from always disconnecting, it could not be said that her behaviour prevented them from doing so. The claims under clause 14A.3 were dismissed in both matters, with the same reasoning being applied in Kalleske as in Elliot.
The remaining contraventions
While the employer succeeded on the right to disconnect claim, the Tribunal found in the applicants’ favour on each of the remaining alleged contraventions and characterised them as serious contraventions on the basis that they were knowingly committed. These included unpaid overtime for work performed beyond agreed part-time hours, denial of meal and rest breaks, failure to provide compliant rosters and adequate notice of shifts, underpayment of superannuation, delayed reimbursement of TAFE fees, and failure to pay accrued leave entitlements within seven days of resignation.
The weight of the decision
Although these decisions provide the first judicial consideration of the right to disconnect provisions, they should be read subject to a number of important qualifications, including:
- the respondent did not advance a defence or attend the hearings;
- the decisions are at first instance, made by a single member of a State Tribunal exercising federal jurisdiction, and are persuasive rather than binding;
- the findings turned closely on the particular conduct alleged. Repeated directions, a formal warning, or any tangible consequence for non-response may have produced a different result; and
- the word ‘indirectly’ in clause 14A.3 remains largely untested. Conduct which renders non-response practically untenable may yet be held to prevent an employee from exercising the right, notwithstanding the absence of an express direction.
Implications for employers
The decisions do not provide a basis for employers to contact their employees outside working hours. Rather, they establish only that the award term is directed at prevention, and the social pressure described by the applicants fell short of such threshold.
In light of this decision, employers should:
- establish clear guidelines for out-of-hours communication, including what constitutes an urgent matter, the channels to be used for work-related contact, and whether a response is expected before the employee’s next shift;
- maintain a clear separation between social and work-related communication. The blurring of the two was central to the applicants’ complaints, and the risk is heightened in small businesses with young or apprentice workforces;
- treat any consequence imposed for non-response as a distinct area of risk. Conduct which does not amount to prevention for the purposes of the award may nonetheless constitute adverse action taken because an employee has exercised a workplace right; and
- have regard to the broader compliance position. In these matters, the out-of-hours contact arose alongside rostering, hours and payment failures which proved considerably more consequential.
Should you require assistance in reviewing your out-of-hours communication practices or award compliance more generally, please contact a member of our Employment Law Team.
