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Switching off: do employees need a “right to disconnect”?

Unions are calling for greater protections for employees working from home, including mandating work/life balance.

Federal Industrial Relations Minister Christian Porter has urged employees to return to the office as soon as possible.

“As our economy continues to recover, it is important that Australian workplaces get back to normal as quickly as possible, which includes getting staff back into the office where it is safe to do so and local health restrictions allow,” says Porter in an interview with The Age.

Despite the minister’s urging the truth is employees aren’t interested in returning to the office.

recent survey by the Australian Council of Trade Unions (ACTU) found 81 per cent of workers intend to continue working from home in some capacity. Almost 50 per cent believe they’re more productive at home.

However, the survey also found working from home was costing employees an additional $530 per person and around a third are working longer hours.

In response, the ACTU is seeking to establish a Working from Home Charter of Rights. The charter aims to ensure those working remotely enjoy the same pay and conditions as those offered to on-site employees.

So, should organisations consider rights for remote workers?

Liquid HR managing director, Nicholas Vayenas, says organisations with comprehensive work from home policies shouldn’t be concerned.

“Current flexibility in the workplace entitlements and robust company policies, on balance, do an excellent job of creating a consultative arrangement,” says Vayenas.

Working from Home Charter of Rights

The ACTU’s charter has four main components according to ACTU secretary Sally McManus.

“Our analysis shows there have been disadvantages for home-workers including working additional unpaid hours, cost-shifting from employers to workers, acute health and safety issues and a worsening work-life balance,” McManus said in a statement.

Concerns around employees becoming overworked have dominated the ACTU’s communications on the charter of rights, and they have good reason to be concerned. Overworked employees face serious health risks and as budgets tighten due to the recession some employees are expected to do more with less.

However, Vayenas says remote workers should be treated the same as any other employee who is working overtime.

“Any increase in hours should be monitored the same way it has always been. The National Employment Standards and Modern Awards are quite clear on the topic,” he says.

As for increased costs to employees, Vayenas believes it likely works out with employees saving money in other areas.

“WFH may have caused some increases in expenses [for employees] but at the same time reduced other costs, such as travelling to work or purchasing lunches and coffees from cafes etc,” says Vayenas.

Modern awards already include provisions for workplaces to reach agreements on how to handle overtime, for example, awarding time-in-lieu.

The Fair Work Commission has acknowledged that most modern awards do not adequately deal with issues related to working from home. Even for employees with enterprise bargaining agreements, only three per cent of agreements had robust work-from-home provisions which makes up just over 20 per cent of EBA covered employees.

In August FWC President, Iain Ross, released a draft model Flexibility Schedule, which proposed greater flexibility for employees to “compress” their workweek. The request would mean employees would complete the same amount of hours over fewer days. Ross’s model also included suggestions which ended up being part of the expanded employer rights in the COVID-19 award variations.

The right to disconnect

In 2017, the government of France introduced the El Khomri law which included ‘le droit de la déconnexion’ or ‘the right to disconnect’. This was aimed at curbing the time employers could contact employees outside work hours. While the law introduces the right it does not define it, meaning it is up to individual workplaces to come to an agreement with employees on what that actually looks like. If no agreement is reached the right cannot be applied or enforced.

The ACTU has proposed the “right to disconnect” in their charter but Vayenas says workplaces should focus on building a culture of disconnecting and having downtime, rather than external forces trying to mandate it.

“All employees have a right to disconnect, which to some extent is addressed in current legislation and our 38-hour workweek,” says Vayenas.

“Furthermore, there is a moral obligation for employers to allow employees to disconnect and it’s important for leaders to lead by example in this space – ensuring employees understand the importance of switching off and drawing a distinction between their personal/work life.”

Protecting remote workers

Vayenas says some employers can be doing more to protect remote workers.

“A lot of employers forget or overlook the fact that they’re still responsible for the health and safety and well being of employees, even if they’re not physically in an office,” he says.

Out-of-sight out-of-mind, cannot be applied to employees working from home, in fact, remote employees face completely different risks to those on-site, so employers should ensure their work-from-home policy is comprehensive.

“It can seem like ‘it’s my house I can do what I want,’ but the onus of safety still falls on the employer. There are plenty of things in which the employer can do to ensure that employees are working in a safe environment that can typically be built into the working from home policy,” says Vayenas.

Vayenas says for most employers, well-being is likely the biggest WHS concern right now.

“There is a danger that people might begin to feel more isolated working from home rather than working in an office environment so what are employees actively doing to ensure that employees working from home feel connected.

“If I was to build a charter of rights for remote workers, my key focus would be on the health and wellbeing of employees. Based on my current observations, this is an area that is currently lacking and unfortunately not being addressed rigorously enough.”

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