Date of report: 19 October 2023
This report covers the period from the last AGM in October 2022 to the October AGM of 2023.
Not Above the Law Campaign – Supreme Court
The decision of the Supreme Court on our Mandamus application was handed down on 2 December 2022. The application was ruled out of time.
Costs were awarded to both parties with the actual outcome of costs to be determined between the parties.
As of the AGM date, SEA and WorkSafe continue the process of calculating costs and the balanced to be paid/not paid by either party.
Victorian Health Prosecution
We are monitoring the progress of this. Trial is listed for the County Court in May 2024. Very difficult to discover any information.
Unfair Contract laws
The Albanese government passed the ‘beefed up’ Unfair Contract laws. These come into effect on 9th November 2023. SEA can be very proud of this, as the laws for small business would not exist without SEA advocacy.
131 Application to WorkSafe re April 2019 chemical fire
We made the 131 Application and WorkSafe replied that the matter had already been investigated.
Labor’s Loophole (IR) Bill
This is the dominant issue for SEA in 2023. The government released the Bill in early September. SEA has been active from when the DEWR discussion paper was released. SEA has been conducting an extensive engagement process with the independent Senators. If the coalition oppose the Bill, then six of the seven independent Senators are needed to also oppose it for the Bill to be defeated.
SEA analysis is as follows.
The Loophole Bill is massively radical. It proposes a transformation of key, core underpinnings of the Australian economy and society. It is perhaps the most radical change of its type seen since Federation.
The Bill seeks to make commercial transactions subject to industrial relations regulation.
It will do this in relation to commercial transactions undertaken by individuals in the earning of their income.
In practical terms, the Bill will outlaw:
- the bulk of self-employment;
- digital (gig) platform operations in Australia;
- self-employed people from earning their income through digital (gig) platforms; and
- self-employed owner-drivers;
- casual employment.
Further, the Bill will:
- Damage competition law in Australia creating opportunity for a further concentration of economic power by big business.
In short, the Bill will make a huge percentage of Australian small businesses illegal. This is why describing the Bill as ‘radical’ is warranted and accurate.
The Bill achieves this by:
- Overriding the High Court’s determinations on ‘employee vs self-employment’.
- Breaching Australia’s International Labour Organisation obligations to protect the status of self-employment.
- Overriding Australia’s competition laws and limiting the power of Australia’s competition regulator (the ACCC).
- Defining the commercial contract as an employment contract.
- Regulating self-employed people as employees.
- Regulating digital (gig) platforms to remove their commercial basis.
- Regulating owner-drivers as employees.
SEA has provided Senators with detailed briefing papers and lodged the following formal submissions.
- Dept of Employment and Workplace Relations on the Proposed (IR) Loophole Bill
- Senate Inquiry into the Loophole Bill
The Senate Inquiry is to present its report in early February 2024.
Tax: ATO & UK
SEA is involved in quite regular consultation on a range of issues.
- Put in a submission to the review of the ATO Taxpayer’s Charter arguing that the Charter is a sham.
- Had consultation with and praised the ATO for its new tax rulings on the definition of independent contracting. The rulings are consistent with the High Court’s Personnel
SEA made a submission and gave evidence to a UK parliamentary committee on tax issues promoting the Taxpayer advocate model
Australian Small Business Commissioner
SEA has fairly regular contact with the SBC as part of its SME consultation.