More broadly, and in light of this trend, the question must be asked: should employers in Australia also have restrictions on the extent to which they can and should contact employees outside of hours to better demarcate between home and work?

Legislating for the right to ‘switch off’

The Productivity Commission has found, Sparke Helmore partner Carlie Holt (pictured, centre) said, that the rate of Australians working from home has increased from 8 per cent to 40 per cent over the last two years.

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In light of this, she surmised, legislators may be looking more closely at the rights of employees to disconnect.

“The ability of workers to ‘switch off’ email notifications and ignore work calls after hours has become a key issue which we anticipate will continue to gain attention over the coming year as we emerge from lockdown and attempt to re-establish workplace boundaries. In Australia, unions have been active in collective bargaining,” she said.

“Earlier this year, the Fair Work Commission approved an Enterprise Agreement for 17,000 police officers in the Victorian Police Force, granting those officers a ‘right to disconnect’. With the exception of a genuine emergency or concern for welfare, those officers are not to be contacted outside of their specified working hours (unless provided with an availability allowance).”

In its decision, Ms Holt continued, the FWC noted that “supervisors and managers must respect employees” periods of leave and rest days and that unless provided with an availability allowance, “employees are not required to read or respond to emails or phone calls outside of their effective working hours”.

“I think we will see some businesses and the public sector following suit,” she predicted.

This “right to disconnect”, Holman Webb partner Alicia Mataere (pictured, left) noted, has gained momentum since the onset of COVID-19.

As a result of the pandemic, she said, putting policies and structures in place to carve out work time for employees is “probably a good business decision”.

“For example, a number of businesses have now implemented protocols in respect of emails only being sent and meetings only being scheduled during working hours (and for some, between school drop-off and pick-up),” she listed.

“Moreover, being able to show prospective employees your policies on flexible work (including when work is performed and emails sent) can have a big impact on a candidate’s decision to work with a business or not. Additionally, businesses need to be mindful of the fact that if they are contacting employees outside of regular working hours (for example, where a business expects employees to read and action emails immediately, rather than on the next workday), that time is considered working time.”

Gilchrist Connell principal Joel Zyngier (pictured, right), however, does not think that legislators should be considering measures to prevent employers from unnecessarily contacting employees outside of hours.

To do so, he explained, would be a “significant departure” from the established Australian approach to legislative regulation of employment standards and conditions, “which generally only sets minimum standards and leaves the industry/workplace level specifics to modern awards, enterprise agreements and the contract of employment”.

This approach works, Mr Zyngier argued.

“If the government starts legislating the minutiae of the employment relationship, it is difficult to see where the line should be drawn,” he said.

“Further, a ‘one size fits all’ approach to out of hours contact by employers is plainly impractical, having regard to the significant differences in needs of employers (and employees) across different industries and even within industries.”

WHS duties to create separation

With WFH increasingly mainstream, Mr Zyngier outlined, employers will have to ensure – to the extent that it is reasonably practicable – that their lawyers are not exposed to risks to their health and safety, including but not limited to the risk of stress and/or fatigue, “as a result of losing proper demarcation between ‘home’ and ‘work’”.

For example, Ms Holt provided, “as a safety lawyer, I obviously need to be able to take calls from clients who have an incident and respond immediately – this may be late at night or very early in the morning. So, it wouldn’t be reasonably practicable for me to stop taking these calls”.

“What won’t be regarded as reasonably practicable are unnecessary emails late at night – things that can wait until the next day,” she advised.

This all said, there are “numerous” duties, Ms Mataere detailed, that employers will have on the WHS front in ensuring that those lawyers can meaningfully demarcate in an evolving landscape.

“Essentially, the employee’s home becomes the employer’s workplace – giving all the more reason to have appropriate policies and procedures in place for when staff do work from home.  Simple things become important, including office set-up, lighting and trip hazards,” she said.

“Having both a roster for checking in on staff and their wellbeing and structures surrounding when work is performed are similarly important; particularly as those structures will provide the necessary demarcation.”

Being an employer of choice

How legal employers position themselves with candidates and existing staff is a fundamental consideration moving forward, especially given that the supposed “Great Resignation” is looming for the legal profession, together with questions surrounding how both the in-house market and boutique firms will be impacted by this movement.

Given this predicted mass exodus from roles, Ms Matarere posited, legal employers who move to mandate no contact outside of hours unless absolutely necessary could be seen as employers of choice.

“The flexibility that employees have either experienced personally, or seen others experience over the various lockdowns will be a factor in determining which businesses become employers of choice. Indeed, this may be a distinguishing feature in an employee’s decision of who to work for,” she said.

“Again, this is premised upon an employer having appropriate structures in place to provide flexibility; which is not just the ability to work from home if that’s desired but also clear guidelines of when work is performed.”

Ms Holt supported this, noting that such mandates could be “very attractive” for new employees.

“For example, Goldman Sachs has implemented its ‘Saturday Rule’, which stipulates that junior staff are not expected to be in the office from 9:00pm on Friday through to 9:00am Sunday,” she pointed out.

This all said, Mr Zyngier noted, all employers should avoid contacting their employees out of hours unless strictly necessary, “even in the legal industry where rates of pay are relatively higher and intended to compensate employees for undertaking occasional (or regular) out of hours work”.

“An employer which follows this approach should be considered an employer of choice,” he submitted.

Further reflections

Looking ahead, Ms Holt predicted, unions and legal employees would start demanding the right to disconnect in enterprise agreements and employment contracts.

“Many employees enjoy working from home because it gives them greater flexibility. Some enjoy the fact they can start later and will work later. I think it would be very difficult to factor these nuances into legislation,” she mused.

Given this, Mr Zyngier suggested, employers should “recognise that just because they have a lawyer whom they know likes to work outside of standard work hours, this does not mean they should be contacting that person during that time, whether by phone, message or email, unless strictly necessary”.

It will be helpful, he added, to have a discussion with the lawyer “about the approach to their out of hours work and reach a mutual understanding about when and how they may be contacted out of hours”.

Such conversations about the practicalities of one’s right to disconnect should lead to increased engagement with and commitment from staff members, Ms Mataere said.

“Those who take action to harness these opportunities, insofar as giving their workers what they want (without the need for legislation), will no doubt be able to use this significant shift to grow, or even pivot their businesses and achieve greater success,” she concluded.