How the right to disconnect could benefit workplaces

Smart organisations will use the new right to disconnect and a potential right to work from home to their advantage, writes Professor Jen Overbeck.

The Federal Government has proposed two major changes to Australia’s workplace laws in 2024.

The first – which has already been passed and royally assented and will come into effect for large organisations on August 26 – is the Closing Loopholes Bill No 2: the ‘Right to Disconnect’ Bill that makes it a finable offence for employers to require employees to respond to contact outside of work hours. Smaller organisations have until August 26 next year to prepare.

The second is the Fair Work Commission’s review into modern awards, which is exploring whether to include a right to work from home in the minimum terms and conditions of employment.

The commission’s review and consultation process has been completed; it is currently preparing to deliver its final report to the Federal Government.

Both changes have numerous implications for organisations and their employees, but if leaders act now to prepare, they can ensure a smooth transition – and may even be able to optimise the benefits these new reforms will bring.

What is the right to disconnect?

The Closing the Loophole Bill No 2 introduces a series of broad-ranging changes to the Fair Work Act, but the most significant is the introduction of a right to disconnect in the National Employment Standards.

This new right effectively makes it a finable offence for managers to require their employees to answer unreasonable work-related queries after hours.

It does this by giving employees the right of refusal when it comes to responding to contact, or attempted contact, outside of working hours. They can also refuse requests to monitor or read any form of work communications from their employer during non-working hours.

You can view the draft term here.

Of course, in some industries it is customary to have people on-call, and the bill won’t affect those roles that carry a legitimate and bona fide reason to contact an employee after hours.

The most important change will be for individual managers who tend to think constantly about work, send emails at all hours and expect to be able to reach their staff around the clock.

These managers will no longer be able to impose an expectation that their employees always be contactable, and could be fined for penalising employees who choose to disconnect.

Preparing for the right to disconnect

Leaders, managers and organisations can prepare for the right to disconnect by following the below steps:

1. Take stock

First, companies and individual managers should look at which employees they currently require to be on-call, and be sure that their expectations of them are reasonable.

Consider, in the review, what industry awards, individual employment contracts, case law and the like may dictate whether on-call work can legitimately be required. Leaders need to be sure they understand what governs their employee-employer relationships and abide by the conditions laid out in these agreements.

2. Be proactive

Organisations should take a proactive approach in supporting their staff – especially managers – to adapt their working style to respect the right to disconnect, rather than waiting to hear complaints about people who have contravened it.

This can start with assessing, at a company level, how commonly employees are contacted out of hours and then assisting individual managers and employes to make the transition.

This can include things such as:

• Running training sessions on managing workflow
• Communicating company norms of only contacting employees within working hours
• Installing IT solutions, such as a ‘send later’ button on work email programs, and encouraging people to use them

Companies should begin thinking about how they can consistently uphold this new law as part of standard operating procedures, rather than addressing individual instances as they arise.

3. Reprogram how you work

One of the most challenging things for individuals who are accustomed to being able to reach other people out-of-hours is to reprogram how they work.

This might involve remapping their own work pattern to fit within traditional working hours.

Another alternative is to create new systems when it comes to sending emails or notifications. For example, night owls who want to capitalise on their energy at 10pm could continue to do so – if they allow for the recipient to pick up the thread at 8.00am rather than being expected to reply immediately.

They could also consider including a line on their email signature that says: “I work at times that are convenient to me, but please do not take this as a requirement for you to respond outside your working hours.”

How is the right to work from home being considered?

The right to work from home is also being considered as part of the Fair Work Commission’s review of modern awards.

The review is assessing whether changes are required to increase flexibility for employees who are balancing work and care responsibilities.

Varying modern awards to include working-from-home rights would immediately affect more than 2.2 million employees, and potentially many millions more who are employed under enterprise agreements.

Optimising flexible work arrangements

Though an enshrined right to work from home may prompt fear in some leaders, organisations shouldn’t be resistant. Instead, they should look at how they can reengineer remote work to optimise performance.

Throughout the pandemic, most companies were forced to quickly move their entire workforces online, with little time to set up processes or provide support for employees who were focused on simply staying afloat. Many or most studies that show negative work-from-home outcomes reflect the covid lockdown era, which confounded working from home with the stress, disruption, and lack of preparation that came with it.

The introduction of a legislated right to work from home could offer organisations an opportunity to reflect on how they manage hybrid teams in a more considered way. More recent research suggests that remote work can be collaborative, creative, and productive when managed well. Organisations that lift their game can thus see benefit from new legislation.

Proactive steps could include:

• Providing training on managing hybrid teams and remote employees
• Helping managers understand how to monitor performance and motivate employees without falling back on outdated ‘command and control’ habits
• Developing working from home guidelines to be circulated as part of the onboarding process
• Providing adequate equipment, such as additional monitors and keyboards, so that all employees can create a home workstation that mirrors their office set-up
• Investing in systems and software that optimise the hybrid experience for teams, especially software that provides for informal workday interactions
• Reevaluating workloads and reassigning tasks that may lend themselves to remote or hybrid teams 

Regardless of the outcome of the Fair Work Commission’s review, it is unlikely that demand for working from home will go away any time soon; and employers’ reluctance is not supported by research. Leaders should view this as a chance to pursue innovative working arrangements that benefit everyone offering flexibility to employees where possible while supporting engagement, well-being and collaboration.

Together with the new right to disconnect, the consideration of a right to work from home could unlock an opportunity for smart organisations to reengineer modern work practices – to their own benefit, as well as their employees’.

Jen Overbeck is a Professor of Management and Associate Dean, Research at Melbourne Business School. She teaches Organisational Change, Negotiation and Managing People on our MBA programs, and also presents on the Women in Senior Leadership Program and Advanced Management Program.

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