Work-life balance is about to become a protected right in Australia with the introduction of the right to disconnect. It couldn’t have come at a better time, as recent studies show 52% of Australians consider their balance to be average or poor. 

Employers must understand shifting labour laws. This is even more essential when you work in recruitment, a sector that is full of odd hours, constant communication, and new contracts. 

Katherine Stewart, Senior Associate at Velocity Legal, walked us through the new laws at our recent Captain’s Table event. She explained what recruitment agencies can expect, and how you can protect yourself, your clients, and your employees going forward. 

The importance of work-life balance 

We often think of work-life balance as a positive for employees. It helps prevent burnout, makes work more enjoyable, and contributes to overall mental well-being. However, employees aren’t the only ones who benefit from this focus. 

When you work in recruitment, being able to guarantee a certain level of balance goes a long way. Mental health is a major priority for Gen Z employees, and many of them name work-life balance as a key deciding factor in accepting a job. And that’s only the beginning. Research has shown that:

• 85% of companies that focus on their employees’ work-life balance have seen a boost in productivity 
• One in three employees will stay in their current job long-term if they have a good work-life balance 
• 95% of HR leaders name burnout as the number one reason for losing top talent 

Ultimately, protecting the home lives of employees is in everyone’s best interest. However, as with any new law, some challenges come with implementing the right to disconnect. So, it’s more vital than ever to understand what work-life balance means and how it can be implemented. 

Understanding the right to disconnect 

The right to disconnect is a new amendment to the Fair Work Act in Australia. It strives to bring labour laws into the 21st century, accounting for how easy it is to engage with work 24/7. 

Hybrid and work-from-home environments blur the lines between office and home time, and it can be difficult to put work down when your team is always a phone call, text, or email away. The right to disconnect puts walls up to protect the time that employees are off the clock. 

Enterprise-level companies will be held to this new standard starting 26 August 2024. If you’re a small business, you have an extra year to implement new policies, but understanding the law now will help give you an edge when looking for talent. 

Anyone working under an award will have a set ‘right to disconnect’ term. This will allow workers to leave work at work, even as we become more interconnected. 

When it comes to recruitment, this right will have a two-pronged effect. 

1. Employees can only monitor, read, or respond to contact from their employer during work hours. 
2. Employees can refrain from engaging with candidates or clients after hours. 

This law won’t stop employers, clients, or candidates from reaching out during these times, but responses will rely on the team member’s willingness. However, the refusal to engage can’t be unreasonable. Recruitment often requires some weekend and evening work, so defining reasonable communication is key. 

Defining unreasonable refusal 

What constitutes an unreasonable refusal to engage with work will look different for everyone. There are a few considerations that can help pinpoint this threshold. 

When deciding how imperative a response is, take into account: 

• The reason for the contact 
• How the contact is made/how disruptive it is
• If the employee is compensated to work additional hours or remain available 
• The employee’s role and responsibility 
• The employee’s circumstances and responsibilities outside of work

Because of the nature of these elements, there are going to be grey areas. 

For example, while an executive can be expected to be more available after hours than a junior employee, 24/7 availability is unreasonable. But what if there’s an emergency in the middle of the night? How serious does an issue need to be to justify a 3am phone call or a slew of emails over Christmas? 

The pathway for disputes 

With so much room for debate, it’s important to understand the ways disputes will be handled. There will be two levels of action. 

The first thing to do if there’s a dispute is to handle it at the workplace level. This can be done in a few ways: 

• Meet with the employee in question to discuss the refusal and try to come to a resolution 
• Bring in a mediator to help facilitate a discussion between both parties 
• Refer to the company’s policies and procedures for handling disputes 

However you handle problems with your team, if a solution can’t be found then it’s time to get the Fair Work Commission involved. Once they have assessed the situation on a case-by-case basis, the commission will make an order. This decree can; 

• Stop an employee from unreasonably refusing contact
• Prevent an employer from taking action 
• Stop an employer from continuing contact

If you or someone on your team receives an order and ignores it, there will be civil penalties such as a fine. 

Navigating the right to disconnect in recruitment 

Recruiters will constantly interact with these new laws going forward. Your clients and potential candidates will need to understand the scope of the laws. By understanding them yourself, your team can protect candidates’ rights, and help clients define expectations. 

Outside of work with clients, recruitment agencies will still have a minefield to traverse. Work as a recruiter has traditionally required work outside of the 9-5. This might include:  

• Emailing host clients
• LinkedIn marketing 
• Urgent job posting
• Weekend calls with candidates
• Confirming interview availability 

Recruiters aren’t the only ones who have to deal with communication outside of work hours. If your recruitment agency hires a labour candidate, they may be contacted for: 

• Ending a placement 
• Performance management 
• Contact by the host client
• Confirming availability for placements 

These facets of the work cannot realistically be cut out entirely, but there can be some effort made to bring them into work hours or to outline them clearly and accommodate them in contracts and hiring. 

You and your team will need to decide what constitutes reasonable contact, and how these expectations will be communicated to candidates, as well as your employees. 

Giving warnings under the right 

One of the biggest changes that employers need to be aware of is the language they use when crafting warnings and dismissal letters. There are many reasons that someone might be under-performing at work, but using broad statements in a letter can open you up to counter-action. 

For example, if you write in a warning that someone is “not responding to clients in a timely manner” they could file a complaint and show times they didn’t respond after hours. This kind of context can bury legitimate issues under a right to disconnect dispute. 

Strategic exercises of right 

Another way this right opens up employers to challenges is when an employee exercises it as a means to an end. These strategic exercises can be used to get around legitimate complaints and even put employers on the hook for reasonable discipline. 

Some examples of the right to disconnect being used strategically include: 

• A recruiter getting wind that they are up for dismissal and complaining that clients and candidates contact them outside of working hours 
• An employee refusing to read or respond to work emails outside of working hours when they are already on a performance improvement plan 
• An employee refusing to engage with an investigation into alleged misconduct if any contact from the investigator is made outside working hours
• An employee complaining that clients and colleagues are contacting them outside working hours any time there is a question about their performance 

These situations can be varied and complex, but your team must be on the lookout for them to avoid being taken advantage of. If you find yourself facing a strategic exercise of right, make sure you seek advice early and avoid broadly circulating the issue amongst management. 

Designing contracts and PDs 

To avoid issues and confusion around the right to disconnect, your expectations should be clear from the start. Any contract or position description (PD) must include role requirements, responsibilities, and expectations around working hours. 

During salary negotiations, ensure you discuss and land on a number that allows for reasonable additional hours. When you’ve already established an expectation for some off-hours work, you can make a case for any unreasonable refusal of contact. 

In conclusion 

In a society where work often spills over into personal time, the right to disconnect represents a significant step towards ensuring a healthier work-life balance for all. As employers and employees navigate these new labour laws, it is crucial to prioritise well-being and set clear boundaries.

There are several potential stumbling blocks for recruitment agencies and employers as they navigate these new laws, but by taking the time to understand what’s coming,  you can ensure your team is prepared.