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But with people increasingly working from home or in a digital environment, how can workers continue accessing their union if so many of us are often not in the office? 

FSU National Assistant Secretary Nicole McPherson recently addressed the Australian Labour Law conference on this very topic. Her paper, titled ‘Right to enter or right to access?’, examines the various ways in which our workplace laws (particularly ‘right of entry’ laws) have not kept up. 

Most importantly, it details what workers stand to lose, and what can be done about it. 

Accessing a worker’s digital environment 

It was at the height of the COVID-19 pandemic, when people were directed to work from home, that this disconnect between our right of entry laws and their practical reality became most apparent. 

“While bargaining with a major employer, I decided to submit an entry notice seeking access to the ‘digital environment’ of this employer,” Nicole explained.  

“Perhaps not surprisingly, the employer rejected my entry notice and we were not permitted to access any of the workers through their work environment. 

“Right of entry matters because it is the legal mechanism by which unions and workers are able to access each other while on employer property.” 

So in a world where fewer workers are accessible in their employer’s workplace, where does that leave us? 

“The simple fact is that when workers are working remotely there is no clear right for union permit holders to access workers,” said Nicole. 

Under the Fair Work Act, the ‘right to enter’ means a right to enter a premises. 

“While it’s arguable that non-physical premises could be included, it seems that this wasn’t actually contemplated by the drafters of the legislation,” said Nicole. 

“What’s more, the Act specifically excludes premises used mainly for residential purposes from entry by a permit holder.   

“So when workers are working from home, one could argue that there is no right for a union permit holder to access those premises.” 

So how do we overcome this challenge? 

Given our laws are failing to meet the objectives of the Act – specifically, allowing workers and unions mutual access – we need to reimagine our right of entry laws.  

“In order to do this, we need to first acknowledge that the nature of the workplace has fundamentally and permanently changed for many workers,” said Nicole. 

“The workplace can now consist of any geographical location, often controlled by the employee, such as their home.  

“Therefore, a potential response to this challenge is to reconceive the right to enter premises as a right to access workers.” 

It’s a challenge that is already being tackled in some European countries, including: 

• agreements stating that remote workers should have the same access to worker representatives as those not working remotely.  
• agreements stating the employer will provide unions with detailed employee information to allow the union to make contact. 
• Italy and Spain have laws allowing unions to access all workers, which includes those working remotely. 

“These examples demonstrate that it is possible for right of entry to be recast as a right for workers and unions to have access wherever their location or whatever their mode of work may be,” said Nicole. 

“It’s an issue that needs to be addressed here in Australia, particularly for white-collar sectors like the finance sector where working from home arrangements have already become the norm. 

“A genuine right of access is essential to the protection of worker’s rights in Australia.” 

You can read Nicole’s full report here.