Flexibility in the Australian workplace has been an evolving paradigm since at least the implementation of the Fair Work Act in 2009.
Seemingly exponential advancements in technology have allowed employees to engage with work colleagues, customers, clients, suppliers and business consultants through innovative platforms such as Skype, Zoom and Microsoft Teams.
The utility of this technological advancement was never proven more valuable than during the Covid-19 pandemic crisis in recent years. Mandatory shutdowns of workplaces, and mandatory work from home orders would have, in previous times, crippled businesses, and seen job losses at catastrophic levels.
However, as we all know, the ability to work from home, and to connect electronically to the workplace and with work colleagues, proved to be an economic life saver for businesses and employees alike, as well as a benefit for our society more generally.
We all now know that the ability to work from home has created a demand in favour of employees in many workplaces, who can insist upon some flexibility in working arrangements; particularly in sectors where labour is relatively scarce. Those demands can range from a request to work in a hybrid model (part work from home / part work in the office), to a fully remote workplace model.
This of course has been of great benefit to many employees who have now discovered a much greater work / life balance for themselves and their families.
Conversely, technology has also meant that many of us can still be in touch with our workplace long after the office doors have been shut at 5pm of an evening and over the weekend. Incrementally, demands upon employees to answer emails, telephone calls or text messages outside of normal office hours has also become part of the modern workplace paradigm.
This has seen a criticism being levelled upon employers, who may not be providing the adequate space and time for employees to completely decompress from their work duties.
Consequently, Australia has now followed the model of over 20 other countries, including many in the European Union and in Latin America, who have enacted Right to Disconnect (RTD) Laws.
Effective from 26 August 2024, Australian workers now have a right to disconnect as a result of the operation of Federal RTD Laws.
Simply put, this allows employees the right to “ignore” out of hours emails and calls, without fear of being punished, through disciplinary action or termination of employment. The RTD Laws provide a right for employees who refuse to monitor, read or respond to contact or attempted contact outside of their normal working hours.
The important caveat is that an employee must not refuse to respond if the refusal is unreasonable.
The Fair Work Commission has published its guidelines as to what might be considered unreasonable conduct on the part of the employee in refusing to respond to contact out of hours. Those matters to consider, include the following:
- the reason for the contact or attempted contact;
- how the contact or attempted contact is made and the level of disruption it causes to the employee;
- the nature of the employee’s role and their level of responsibility;
- the employee’s personal circumstances, including family or caring responsibilities;
- whether the employee is compensated or paid extra for:
- remaining available to work when the contact or attempted contact is made; or
- working additional time outside of their ordinary hours of work.
If there is a dispute between the employer and the employee about the right to disconnect, the parties would need to try and resolve the matter as between themselves, but in circumstances where they cannot resolve those differences, they may apply to the Fair Work Commission to assist in a conciliation and mediation process.
In many respects, these are simply common-sense employment law amendments that reflect the nature of the evolution of the modern workplace.
In time, the question of whether it is reasonable or unreasonable for an employee to refuse out of hours contact will be tested through the Fair Work Commission, and will no doubt be the subject of rigorous debate.
It may be concluded, however, that an employee may still be reasonably expected to have some form of engagement with the employer out of hours, if:
- they hold a senior position;
- their remuneration is well above minimum standards (such as Award rates of pay); and
- the out of hours contact is not of such a nature as to interfere with or disrupt the employee’s personal circumstances, including but not limited to their family and caring responsibilities.
It is often the case that disputes arising from employment relationships can be circumvented by having the parties’ mutual expectations adequately expressed in an employment agreement. Those terms can include what might or might not be agreed to be reasonable contact out of hours, and the process by which the parties may undertake a resolution of any disputes.
SPG Lawyers have significant experience in drafting and creating employment agreements in Australian workplaces. If you require any further guidance in relation to the new RTD Laws or would like assistance regarding drafting employment agreements, covering the RTD amendments (or more generally), please feel free to contact our Partner, Tony O’Connor, on 07 5570 9380.
Tony O’Connor
Partner – Litigation and Dispute Resolution Work Group
SPG Lawyers
