Out of Hours Policy and Procedure Audit

The right to work from home and the right to disconnect from work are both currently being considered as additional new rights for employees in Australia.

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The legislative right to ‘disconnect’ is proposed to cover all employees, not just those covered by modern awards. The Closing Loopholes No 2 Bill that has passed the Senate, is a right for workers to disconnect from “unreasonable” out-of-hours contact from employers.

Under the proposal, the FWC would be empowered to issue stop orders, similar to the stop bullying and stop sexual harassment orders. If the stop orders are breached, it is envisaged that civil remedies may be imposed. The Commission would have the power to determine what is “unreasonable” contact, taking into account a non-exhaustive list of factors such as:

the reason for the contact;
the frequency and method of contact;
remuneration;
role and responsibilities; and
the worker’s personal circumstances, which may include family responsibilities.

This change is purported to support a healthier work-life balance for employees. In fact, research from the Australian HR Institute, which surveyed over 600 senior HR professionals and senior decision makers, shows that almost two thirds of respondents think a right to disconnect would have a positive impact on workplace flexibility and 41 per cent already have some form of right to disconnect in place.

HR and employers to keep in mind include

The practicalities of preventing contact with employees outside their working hours, especially for global businesses spanning multiple time zones, raises logistical and management considerations.
An increase in employee claims if: the right is allegedly breached; or employees perceive unfavourable treatment, such as disparities in pay or promotions, compared to colleagues who remain connected outside standard working hours. This is also a consideration for employees who’d choose to work from home if that were to also become a legal right.
Businesses relying on flexibility for connecting with employees outside regular work hours, particularly those with global operations, may experience disruptions to their operations.
Employee morale may be affected if some exercise the right and others do not, leading to dissatisfaction within the workforce. This could result in a perception that some colleagues are not contributing, placing a heavier workload on those who choose to stay connected beyond regular hours.

What might the right to WFH look like?

While working from home arrangements are not possible in all sectors and positions, if the right is included within modern awards, many employers may need to consider negotiating and entering into separate flexible working arrangements.

These may be similar to ‘time off in lieu’ agreements (being a written agreement which could be as simple as email correspondence confirming an employee’s entitlement to take time off from work in place of receiving overtime pay for additional overtime) or formal flexible work requests under the Fair Work Act.

Separate agreements may also need to consider what working from home means on an individual basis including by:

Expanding the definition of ‘ordinary hours’ while working from home;
Abandoning the requirement to agree on employee start and finish times or to agree to a specific range of times;
Allowing for meal and rest breaks to suit personal circumstances; and
Changing recording requirements in respect of timesheet reporting of hours worked.

Presently, the Fair Work Act only allows flexible working arrangements in certain circumstances such as pregnancy and/or parental requirements. The proposed inclusion of a right to work from home in modern awards would be additional to and broader than the current right, without being tied to a particular attribute or responsibility.

Proactive steps for business to take

The FWC considers the inclusion of these new rights in modern awards, and there are proactive steps that employers, HR and people managers can take now. Such as getting Diversity Australia to audit and review your:

Policies and processes

Reviewing and assessing current policies and processes related to working from home requests, and for managing employees working from home.
Consider conducting an audit on the potential impact of a right to disconnect. For example, if your organisation’s workers had the right to not respond to emails from 6pm to 8am, what impact might that have on operations?
Examine practical measures that your organisation could take to prevent contact with employees outside their ordinary working hours if a right to disconnect was introduced.
Consider what policies or procedures would need to be revised or introduced.
Contemplate the right to disconnect provisions that would need to be introduced to employment agreements and enterprise agreements under negotiation.

Implementation

Consider establishing a system to monitor employees’ work activities outside the agreed-upon working hours.
Actively encourage people leaders and managers to respect employees’ time away from work and employees’ out of work time.
Provide training to managers to prevent any adverse action against employees who exercise the right to disconnect.
From a wellness and work health and safety perspective, educate all employees about the right to disconnect and any applicable business initiatives, including promoting the wellness advantages of disconnecting from work.
Implement internal processes for employees who choose to work outside agreed hours.
Communicate to all employees, and across the business, the expectation that emails and tasks should be scheduled for delivery during agreed working hours.

Business implications

Assess whether your organisation can comply with its obligations to employees should they request to work from home.
Evaluate the impact that increased working from home might have on your business, culture and employee wellbeing, and, alternatively, what impact it would have to refuse working from home requests.
Based on duties and responsibilities, consider what reasonable business grounds you have for refusing requests to work from home.

Empower Your Business with Inclusion and Diversity and take Proactive Steps Today with Diversity Australia!

In today’s fast-evolving workplace landscape, staying ahead means not just adapting to changes, but embracing them with open arms. With new rights being introduced in modern awards, it’s time for your business to lead the charge in fostering an inclusive and diverse environment.

Diversity Australia is here to guide you on this journey. By auditing your current policies and procedures with our expert assistance, you can ensure your organization not only meets the new changes but sets a benchmark in inclusivity.

Employers, HR professionals, and people managers must take decisive actions now to transform their workplace culture. With Diversity Australia, you’re not just complying with new standards; you’re championing a workplace where everyone feels valued and empowered.

Act now, and make your business a beacon of diversity and inclusion in the modern corporate world!