The clock strikes 5:00PM, you walk out of the office and you can now safely ignore those after-hours phone calls and emails from your team, all thanks to a new law.
The legislation, which is part of the Closing Loopholes No. 2 Act 2024 and applies to businesses with 15 or more employees, means individuals will have the right to refuse contact outside their working hours unless that refusal is unreasonable, according to the Fair Work Ombudsman.
It does not mean that a colleague or a manager cannot get in touch with an employee outside of working hours – merely that the recipient cannot be penalised for refusing to monitor, read or respond to contact from an employer or a third party.
For the advertising industry, pulling long hours is common in both media and creative agencies, especially when working on pitches, with stories abounding of staff working countless late nights and weekends to prepare the perfect presentation.
DDB Group Melbourne CEO Mike Napolitano said this will have a huge impact on agencies that are still holding on to outdated approaches that rely on a "sweatshop culture".
“If your operating model is 'everyone’s replaceable, so let’s work the team day and night', then you should expect some serious ramifications as leaders,” he said.
“While on occasion we all might need to work a slightly longer day or be connected outside of standard business hours to deliver for our agency, this can't be the norm.”
“The new laws do allow flex and, if it hasn’t already, our industry should use this moment as the trigger to recalibrate expectations both with our own teams and the clients we work with,” he said.
INNOCEAN’s people and culture lead Liam Casey said any change in culture as a result of the legislation depends on the agency and the clients they represent.
Clients will now need to factor this law into their planning and decision making.
“It’s also quite a different question per department within an agency - not being contactable for someone in the production department during the final stages of a large TVC versus someone in the finance department unable to answer a budgeting question are two totally different things,” Casey told AdNews.
“At Innocean, we are lucky that our culture allows for flexibility for all already; after hours contact is always carefully considered to ensure it’s reasonable and if such contact is deemed reasonable, it is always compensated for at a later date.
“I think some of the most vital things that all agencies will now need to have moving forward is an open stream of communication, workplace flexibility, careful and considerate forward planning and compensation/reward considerations for any over and above work completed.”
Initiative’s MD of Sydney, Jo McAlister, said her agency has already had policies such as the right to disconnect and 100% flex in place, as the IPG subsidiary noticed several years ago that smart devices were enabling "availability creep", which in turn saw an always-on culture developing.
“These laws are following a global trend, but I think it’s important to take a commonsense approach to applying the new laws,” she said.
“The term ‘reasonable’ is important and depends on the level of responsibility. I don’t think the law will change how our agency operates, however I do think creative agencies might feel more challenged as the creative process often doesn’t always occupy a 9-5 timeslot.
“It is proven that we generate better output when our team is well-rested and feel rejuvenated. A happy team leads to better work and therefore happier clients.”
Fair Work has advised the factors to be considered when working out whether an employee’s refusal to respond is unreasonable.
These include the reason for the contact; how the contact is made and how disruptive it is to the employee; how much the employee is compensated or paid extra for being available to perform work during the period they're contacted, or working additional hours outside their ordinary hours of work; the employee’s role in the business and level of responsibility; and the employee’s personal circumstances, including family or caring responsibilities.
France first implemented legislation on the right to disconnect in early 2017 and similar policies have also been adopted in Belgium, Ireland, Italy, Portugal and Spain.
Independent agencies AdNews spoke to were broadly supportive of the changes, although the smaller players in the industry will be exempt from the regulations for some time yet.
For small businesses – defined by Fair Work as an employer with fewer than 15 employees – the requirements will kick in at the end of August next year.
Half Dome’s head of people and culture, Renee Murray, said these laws will undoubtedly impact the culture of many media and creative agencies for the better and it's crucial to understand that this change is not isolated to the advertising industry.
“The shift towards protecting work-life balance is happening across all sectors, and while some may find the adjustment challenging, it's inevitable and an opportunity to lead by example,” she said.
“Our industry is known for its flexibility, which positions us uniquely to embrace this change in a way that enhances our work culture. Those who adapt to these changes will not only retain talent but also gain a competitive advantage by showcasing a happier, more engaged team to clients.”
Orange Line's co-founder David Klein said this wouldn't be an issue in the first place if employers treated their staff with mutual respect, and vice versa.
"This is a strong reminder to employees that they should do their best to get to know the leadership and the team they'll be working with, as well as working conditions, before they accept a role," he said.
"If agencies want to retain top talent and ensure their teams avoid burnout, it's their responsibility to foster a positive culture that prioritises the wellbeing of their staff."
The Pistol’s business director, Jules Brahe, said the industry has already seen a significant shift in culture in recent post-COVID years, with the previously glamourised hustle of late night and weekend work now shifted to a clear focus on overall balance and wellbeing.
“While I reflect on the lifelong friendships I built in some of those key moments of hustle, bonding over a common goal, pizza and a few beers, as an agency leader I am focused on creating a culture where people can feel connected and fulfilled with meaningful work, but set their own boundaries to create balance,” she said.
The Fair Work Ombudsman will have an enforcement role if there is alleged non-compliance with the Fair Work Commission’s orders.
An employer may be subject to penalties of up to $18,780 for an individual or $93,900 for a body corporate per contravention for contravening a commission order in relation to the right to disconnect.
The Media Store’s chief operating officer, Jacquie Alley, said that while the intent of this entitlement is to ensure individuals’ permission to switch off from work and not feel contactable 24/7, working in a service-based industry such as advertising means things can go wrong at any time.
“Campaigns are running which don’t neatly tie up at 5.30pm each day,” she said.
“It’s the role we play for our clients, to be solution-focused and agile. So, how will this work within agency land when we want to continue servicing our clients yet not at the expense of our people’s wellbeing?”
Alley said The Media Store already monitors self-reported timesheets and encourages regular annual leave breaks to prevent burnout, as well as implementing initiatives when pitching for new business, a time which often requires out-of-hours contact.
“We often give our entire team a day off in lieu after a big pitch as, in an indie, you are either working on it or picking up the BAU workload during these periods,” she said.
Alley said that she anticipates more conversations within agencies around topics like what is reasonable and unreasonable out-of-hours contact, clear escalation points and RASCIs and individual communication channel preferences.
“The balance between business hours and client’s needs is the tension all agencies have had to always balance as not everything can be resolved by 5.30pm when their campaigns are indeed running 24/7 in some instances,” she told AdNews.
Bench Media’s senior people and culture manager, Nicole Jurke, said that for independent agencies that already prioritise best practices, these laws align with existing values.
“While there may be times when addressing urgent client matters outside regular hours is necessary, such agencies typically balance this with the flexibility to maintain a healthy work-life dynamic for their teams,” she said.
"These laws encourage companies to adopt better work practices, which independent agencies with a family-oriented focus on people and well-being have been championing for years.
“While the majority of companies have already been doing the right thing, these laws empower employees to speak up without fear of being performance-managed for not responding to after-hours communications, ensuring fair treatment across the board.”
Expect most issues to be resolved internally
John Farren, the director of Farren McRae Workplace Lawyers and Consultants, said he doesn’t anticipate these laws will fundamentally change the long-established culture of agencies.
“While the Fair Work Commission's new award term adds an obligation on employers not to directly or indirectly prevent this right from being exercised, what that means remains unclear,” he told AdNews.
“However, it is clear that employers with award-covered employees face an obligation that goes further than the new Fair Work Act provisions. In the end, I think that most issues will likely be resolved internally within workplaces through discussions with employees rather than being escalated to the Commission.
“Employers should also never take adverse action against an employee for lawfully exercising their right to disconnect."
For some, staff being contactable outside of ‘standard working hours’ isn’t a new hurdle to overcome.
Publicis Groupe's chief talent officer for APAC, Pauly Grant, said that the company has always adopted a flexible culture with its Publicis Liberté approach to flexible working and no set hours in our contracts.
"We want our people to enjoy the flex they need whilst still being able to deliver to clients," he said.
"These laws won't change our culture, but they do provide an opportunity for pause and encourage everyone to really consider some key factors when determining whether out-of-hours contact is critical."
Government overreach or much-needed legislation?
Orange Line's Klein said that the new laws are "absolutely" government overreach and "completely ridiculous".
"The job market is rather fluid in the digital industry, with recruiters beating down people's doors daily to find top talent. If someone is unhappy with their current job because their employer's demands are unreasonable, then there are constant opportunities to change their situation without government intervention," he said.
"The most effective way for employees to respond to poor treatment from their employer is to vote with their feet - for example, move jobs."
INNOCEAN’s Casey said that it seems a shame that it has come to a point where the government feels they need to be involved, but that he does think that it’s necessary for them to do so to protect marginalised, underrepresented people in the workforce across Australia, who have repeatedly been left overworked, underpaid, and underappreciated.
“Not all industries or even all creative agencies have the luxury of workplace flexibility, like we have at Innocean, so there does need to be a line drawn in the sand for these workers, who have been unable to stand up for themselves and truly disconnect,” he said.
The Media Store’s Alley said that while the intent to force more distinction between work and home lives should help mental health, the solution feels like a one size fits all approach.
“I wish there had been more consultation particularly within the SME community on how this would work within the various sectors, not to mention the clear generational differences and what we all need within a workplace” she told AdNews.
Alley said that for some, this new law will be incredibly powerful as they reset their priorities and ensure they get the rest they need, but for others, it won’t be as important as other factors within a workplace.
“What it will hopefully do is encourage more open and honest conversations about what each employee needs to feel valued and respected in their workplace,” she said.
Publicis Groupe's Grant said the laws are not just necessary—they are essential for protecting employee well-being.
"While our industry thrives on flexibility and responsiveness, it's important to recognise that constant availability can lead to burnout," Grant said.
"These laws encourage balance, ensuring employees can switch off without the pressure of being 'always on.' Far from government overreach, they promote sustainable work practices that ultimately benefit both talent and business, fostering a more engaged and productive workforce.
Half Dome’s Murray agreed that the laws are necessary to protect teams' wellbeing, and as such, leaders in the industry should view this as a strategic opportunity rather than a regulatory burden.
“By embracing these laws, we can highlight the benefits to our clients—such as increased team happiness, productivity, and creativity. This is a necessary movement that prioritises sustainable work practices, which will in turn drive better business outcomes, one I see as a welcomed government regulation,” she said.
Initiative’s McAlister said that as technology has allowed people to be contactable 24/7 with the rise of burnout and stress becoming more prevalent, the government providing guardrails isn’t a bad thing.
“As a Gen X boss, I see a very different approach from each generation to responding to work-related contact,” she said.
“The new laws will only work if a common sense approach prevails. I am a little more concerned when the laws apply to smaller businesses next year as a lot of small businesses are doing it tough and this will create additional pressure.”
DDB Group Melbourne’s Napolitano said ultimately everybody needs time in their days to reconnect with other parts of their life and recharge.
“We all have family, friends, pressures, joys, expectations and these really do make us unique. It's that uniqueness that we want to foster as a creative business: encouraging our people to bring it with them every day to make our work more insightful, impactful and human,” he said.
“We can blame government for overreaching or label it 'nanny state' but I'd ask us all to simply focus on the people and their experience. If we collectively do better, we'll be better.”
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