Self Employed Australia

"Everyone needs an Advocate"

“Everyone needs an Advocate”

Self-Employed Australia

WorkSafe Victoria raises the ‘double standards’ flag. Kowtows to union demands

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red-bookIn a telling development yesterday, reports from an industry trade magazine describe how WorkSafe Victoria is investigating a business over the death of a worker from Covid-19.  The WorkSafe move comes after the Australian Services Union “…called for an investigation…”

The ASU said that it will be “…supporting a WorkSafe investigation…” and “… will hold all employers accountable…”

There’s a telling tale here of what could be called the ‘Victorian comrade racket’. The union comrades demand. The ‘justice’ institutions jump! It’s selective! Businesses (of any size) are taken to be ‘bad’ and must be punished. But when it comes to holding government itself responsible, under exactly the same laws, it’s all very ‘complex’ and hard!

It’s now 18 months since the Victorian hotel quarantine disaster first started (March 2020). WorkSafe took up to 4 months before it says it started investigating the Victorian government for OHS breaches. It’s nearly 12 months since we wrote to WorkSafe requiring it to investigate. And it’s now 11 weeks since WorkSafe was required under its own statute obligations to give to the Director of Public Prosecutions its investigation material into the hotel quarantine disaster. Delay. Delay. Delay! Where is justice?

Here’s what the Victorian Occupational Health and Safety Act says:

Section 131 (3):  If the Authority advises the person that a prosecution will not be brought, the Authority must refer the matter to the Director of Public Prosecutions if the person requests (in writing) that the Authority do so.

In this case Self-Employed Australia is ‘the person’. WorkSafe has said it is continuing to investigate. That is, it is not prosecuting. Under the plain reading of the Act, WorkSafe “…must refer the matter to the Director of Public Prosecutions if the person requests (in writing)…” We have made that written request. On a common sense reading of the Act, WorkSafe has not done what it is legally required to do for 11 weeks.

We find it deeply concerning that WorkSafe is ignoring what seems to us to be its legal obligation. But we are active in spite of this delay, delay, delay.

There have been 29 pieces of correspondence between ourselves and WorkSafe on this issue over the last 12 months.
We have run radio and social media ads asking WorkSafe to comply with its obligations.
We have just relaunched our dedicated Not Above The Law website. It gives a good overview of the campaign and details the 142 charges we alleged. Check it out.
Our legal team is in deep discussions and preparation.
More major media is being prepared.

Our campaign for justice for 801 deaths will not stop.

We give considerable detail on our efforts here including our 20,000-word analysis The Case For The Prosecution drawn from the Coate Inquiry evidence.

And thanks to the huge support from people that keeps coming in. It is  most encouraging when people contribute even $10 as a member to the campaign. It’s this support (lots of it) that keeps us going.

Small business hugs Karl Marx? That’s a turnaround!

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karl-marxIn the nineteenth century, the father of communism, Karl Marx, ‘created’ class ideology where ‘evil’ capitalists always exploited the working class (who were little more than wage slaves). The worker–bosses war has been fought ever since. Workers have been allowed to strike and bargain collectively through unions to secure their rights against the exploitative bosses.

However self-employed, small business people upset this simple idea because we are both the worker and boss in one. How is it that we can ‘exploit’ ourselves? This has resulted in confused law. It’s confused unions who try hard to force self-employed people to be employees so we can be ‘exploited’ and join the union class. It’s pretty silly really.

But the Australian Consumer and Competition Commission (ACCC) has come to the rescue. The ACCC regulates the economy, checking that big businesses doesn’t use their dominant power to exploit consumers. But now the ACCC has taken another step to stop big businesses using their dominant power against self-employed, small business people. The ACCC is making it really easy for small businesses to bargain collectively with big businesses.

Small business collective bargaining has been available for a few years, but you needed significant legal knowledge to do it correctly. And you had to receive ACCC approval. Now it’s very simple. It:

Only requires a one-page form. No lodgement fee.

Authorisation is then automatic.

Your business turnover must be less than $10m a year.

The ACCC link is here.

What does this mean in practice? Here are some simple examples:

If you are (say) an IT contractor supplying services to (say) a government department that applies a standard pay rate across all similar services, a group of IT contractors could get together to negotiate a different rate.

If you are a retailer and want to bulk buy a product from a supplier, you could get together with other small retailers to negotiate a better price if you buy collectively.

If you are putting in a tender to supply (say) HR services to a large company, you could get together with other HR independent contractors to put in a collective tender.

This collective bargaining process offers opportunities to at least partially match the bargaining power of big business and government by self-employed, small business people. It creates real, additional opportunities for small business.

Combine this with the new pay-on-time laws and the planned ‘beefing up’ of the unfair contract laws and Australian small business people are really starting to receive a fair go in the Australian economy. These are big, important reforms.

The only problem is that unions and others who passionately believe in Karl Marx’s workers–bosses war might feel a bit annoyed. If class ideology is suppressed by new, fairer market regulation, how do unions and others still maintain the battle?

NSW gives green light for business-mandated vaccinations. It’s ‘Safe’

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vaccination-tickYou might recall that on 13 August we wrote to all work safety authorities asking them to make clear statements as to where they stood on business-mandated vaccinations for staff. Here’s our letter.

It’s essential that authorities with the power to prosecute business under work safety laws tell business people how to comply with the law.

Three days ago (1 September) we received a clear, short reply from SafeWork NSW. The key sentence reads:

“SafeWork NSW considers vaccination a high order risk control measure against disease.”  Here’s the SafeWork NSW letter.

We have checked with our lawyers.

SafeWork NSW is saying that if a business/organisation does not mandate Covid vaccinations, the business is at risk of breaching OHS (work safety) laws. That is, the business would be failing to use a high order health strategy to provide workers (and others) with a safe workplace.

We congratulate SafeWork NSW for its statement. People will legitimately have different views on mandated vaccinations. Our point is that the work safety authorities have an obligation—both moral and in terms of governance—not to leave business as the meat in the sandwich over statute interpretation. In the mandated vaccination debate, we say that OHS law is the top priority over other laws such as industrial relations. Every business has a legal OHS obligation not to put people at risk. SafeWork NSW has made a clear statement on that obligation.

This is highly important for small business people. Big business can use armies of lawyers to advise them. Small business people only have themselves. SafeWork NSW has done the right thing by the people of NSW.

The NSW letter also then lays out a checklist for businesses to assess if workers don’t have to be vaccinated. This includes (1) eligibility for the vaccine, (2) personal health, (3) medical history, (4) type of work, (5) the risk of exposure, and (6) the availability of alternative control measures.

In relation to unfair dismissal, it would seem probable that the NSW statement should arguably be a high order defence against an unfair dismissal action. It will be interesting to see how ambulance-chasing lawyers and unfair dismissal tribunals respond to this.

Tasmania is the only other state to reply to our letter of 13 August. It put the responsibility back on to the business. The other states have been silent. Yesterday we wrote to all the other state authorities with a copy of the NSW letter. We have asked the other states if they agree with NSW. All state work safety authorities have a responsibility to the community to make their position on mandated vaccinations totally clear.

Unfair Contracts BIG Beef UP. Fantastic! Bank of Queensland slapped down

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dragon-slayerWith all the focus on Covid, it’s good to see that major reform efforts are still underway. Last week the Morrison Government released the Bill to ‘beef up’ the unfair contract laws. It’s a ripper. It’s a game changer.

In 2015 the Coalition government passed unfair contract laws for small business people. As Self-Employed Australia was the primary, often the only, advocate for the laws (we campaigned for seven years) the laws achieved about 70 per cent of what we wanted. This new law will make the laws really strong.

The new Unfair Contract Bill

The Exposure Draft Bill has been negotiated with and supported by the states. It applies both to consumers and small business people.

The Bill Expands the definition of small business to businesses of up to 100 employees. Currently it’s only 20 employees. The Bill applies no limit on the value of the contract. Currently it’s only contracts to $300K. Plus the Bill clarifies what is a ‘standard form’ contract to one where the contract has been used before.

The Bill also expands the scope of Court Orders. If a clause is declared unfair in one contract, it will be unfair in all contracts. Fines can be imposed for using unfair clauses. A person can be banned from ‘managing a corporation’ for using unfair clauses.

The Bill gives real teeth to the laws. Big businesses and their managers will be in major trouble if they try to use unfair contract clause under this proposed legislation. It truly will make for a greater power balance between big businesses and consumers/small businesses.

Bank of Queensland slapped down

Take this example: The Bank of Queensland (BOQ) has known about unfair contract laws for six years. They were dumb if they didn’t! Yet they ignored the laws. The Federal Court has now slapped down BOQ. They had clauses in small business contracts that (1) let them change contracts at their whim, (2) allowed BOQ to declare a default anytime, (3) allowed BOQ to charge customers for BOQ negligence and (4) forced the customer to disprove a debt if BOQ declared a debt. These are all bastard clauses that have now been removed by court order.

But under the new Bill, BOQ and their managers would be in real trouble for having these unfair clauses. Their executives, lawyers and managers could face been banned from being a manager in banking or any corporation. Are you listening big business managers? Now it’s serious.

The Bill is subject to further consultation. We’ll be putting in a submission of STRONG support. Here’s our summary of the Bill.

Is the ‘gig’ up? Is a ‘secure’ job a fiction? We say it is!

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security-blanketThe Senate is currently holding an inquiry into ‘insecure’ work. The Terms of Reference state: “…to inquire into and report on the impact of insecure or precarious employment on the economy, wages, social cohesion and workplace rights and conditions….”

Well we, self-employed, independent contractors, gig workers, contractors and so on—that is, people who are their own boss—are seen by labour academics and unions as doing ‘insecure’ work. And they see that as a huge social problem that has to be fixed. The Victorian government wants to ‘fix’ us as a problem by outlawing us. Some fix!!

We say that ‘secure work’ is a “figment of imaginations searching for legal expression”. In other words, ALL work is insecure. What people need is not a ‘secure’ job but continuity and certainty of income. This is a more sensible way of approaching the issue. Trying to manufacture ‘secure’ jobs is just the old left-vs-right thing. It’s plain dumb and doesn’t get us anywhere.

We say that self-employed people need ‘protections’ through commercial regulation, such us the unfair contract laws and pay-on-time laws. These sorts of things provide real, practical solutions.

We were asked to appear before the Senate Committee which we did on Tuesday 27 July (this week).

Here’s our one-page summary of our stance on the issue.

And here’s the 37-minute video of our discussion with Senators on the issue.

If you owe the money, pay up! That’s damn good policy

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pay-on-timeMy heart was gladdened recently by the spectacular collapse of Greensill Capital, once a darling of the financial and (some) political elites in Australia and the UK.

Greensill was a ‘leader’ in reverse factoring, also known as supply chain financing. In its simplest formulation, reverse factoring enables a supplier to receive faster payment of money owed to it by paying a fee to a finance company. The finance company pays the supplier and takes over the debt. It can be good.

But the way it was working under Greensill had the stench of ‘come in sucker’.

Greensill claimed to have hundreds of clients, all of whom seemed to be big-end-of-town types such as Telstra.

But the trick that was happening under Greensill is that its clients seemed to routinely screw their small business suppliers by extending payment terms out to 90+ days. The deal then was that the small businesses would pay a commission to Greensill so that Greensill would pay them the money they were owed by the conglomerate.

In summary, the conglomerate takes money from the small business by extending payment terms. Then the small business had to pay Greensill to be paid. For small business it was rip-off territory.

But what was really on display here was capitalism at its grubby, manipulative worst.

Market economies and societies are not Wild West, unrestrained capitalist societies. Successful markets regulate behaviour. Good market regulation is as ‘light touch’ as possible. In the Greensill case, the regulators had moved in on this reverse factoring model and went further.

In the 2019 Federal Election campaign the Morrison Coalition made a firm commitment to introduce a package of small business pay-on-time laws. This included the government paying small business suppliers within 20 days, as well as requiring large businesses contracting with government to do the same. And further, establishing a compulsory small business pay-on-time reporting system for all large businesses.

As of now, each of these promises has been implemented or is in the final stages of implementation. Cross-party political support has been firm.

In this case of Greensill the damage to small businesses by the exploitative reverse factoring game was limited. The regulatory push moved in comparatively early. Too often, if the market is unregulated and left to ‘self-correct’, the damage to individuals is horrendous. Harm done to a few cannot be justified by the alleged benefit of the greater good in the long term.

In this ‘pay on time’ story we can witness perhaps an example of quality, ‘light touch’ regulation.

And there’s one simple principle in play. If you owe money: Pay!

Without doubt, for small business people, being paid on time is the BIG issue!

How the ATO ‘manages’ parliament – ATO techniques as ‘lawmaker’

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In 2018, high-profile tax lawyer Mark Leibler stated that the ATO effectively makes tax law. He said:

“…for all intents and practical purposes, it’s effectively the (Tax) Commissioner who lays down the law.” “…Commissioner effectively continues to act as lawmaker…”

The accuracy of this statement can be seen, in part, in the way the ATO ‘manages’ its appearances before Parliamentary Committees.

Our observation is that the ATO is polite, professional but provides answers only in general ways, avoids specifics and always emphasises how ‘nice, reasonable, and sensible’ it is. It uses the ‘you can trust us’ approach. By using this approach the ATO deflects attention away from facts that show them to be unreasonable, unfair, aggressive, breaching rules and intent on being an arbitrary tax ‘lawmaker’. In our view the ATO usurps the parliamentary process of democracy in this manner.

We’ve monitored some of the recent Senate quizzing of the ATO (2 and 3 June). Here are some YouTube clips you might find interesting. We think these clips give an insight into the ATO, but we’ll let you decide what you think of the ATO’s parliamentary management techniques.

In our view the Australian Parliament needs stronger oversight of the ATO’s tax management processes. Legislation is needed to achieve this.

Deliveroo decision is NOT a win for unions. Just normal stuff!

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There’s a lot of excitement coming from the union movement over the recent ‘Deliveroo’ decision. ‘This is the end of gig’ they say.

They are excited because the Fair Work Commission (FWC) has declared that Deliveroo food deliverers are employees and not independent contractors.

However  there’s nothing at all unusual about the decision. In 2018, a similar company to Deliveroo, the German-based Foodora, left Australia after its delivery people were declared to be employees. Conversely, in April  2020, Uber Eats delivery people were found to be independent contractors not employees.

You might ask, ‘is there some inconsistency here?’ Well, no! In fact the FWC (and the courts) are being entirely consistent. What the law requires is the application of the standard common law tests to distinguish an employee from a self-employed person.

The process involves considering up to about 20 or more factors such as: Did the worker have to work certain times? Was the worker ‘required’ to work? How was the worker paid? The task at law is to look at all the  factors and give an overall assessment.

Even though Foodora, Deliveroo and Uber Eats appear to do the same thing—organise riders to collect food from restaurants and deliver the food to customers at home—in fact they each have different contracts and manage the process differently. That’s why the rulings differ.

I’ve examined both the Deliveroo and the Uber contracts. I’m not surprised by the Deliveroo decision. There are major operational differences between the companies. The fact is that the Deliveroo decision supports the legitimacy of the gig economy.

In 2006, Federal legislation secured across the country the ‘common law’ test for employee vs contractor determinations. The Independent Contractors Act followed on from a 2006 International Labour Organisation declaration which secured the right of people to be self-employed. Australia is a signatory to that international obligation.

Further, Australia has done more than any country to protect and defend self-employed people.

The Independent Contractors Act has unfair contract provisions. In addition, we have specific Federal unfair contract laws for small business people that are currently being ‘beefed up’. Then there are the current moves to create pay-on-time laws for small business people. The JobKeeper and JobSeeker benefits were made immediately available to self-employed people during 2020.

At the same time, there is no tolerance for sham contracting, with specific laws against that practice.

These Australian protections for self-employed independent contractors are world-leading.

But this regime that protects the right to be self-employed is hated by Australian unions and labour in general. They run scam media plays trying to boost the argument that self-employment is on the way out.

This ‘we hate independent workers’ movement is deeply embedded in Australian Labor.

The Victorian government is proceeding with an agenda to kill off self-employment. But Victorian Labor’s plan is confronted by the Independent Contractors Act which overrides state laws on the issue. This then explains the hype around the (very normal) Deliveroo decision.

Labor is eager to turn ‘gig’ into an election issue. But it’s up against the most advanced package of self-employment protections in the world. Labor’s agenda threatens those protections.

ATO relies on ‘gossip’ to manufacture tax debt, defiling the rule of law

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An April 2021 High Court outcome demonstrates that the ATO has chucked the rule of law into the bin. The ATO asserts that it can manufacture a tax debt based on gossip.

Between 2012 and 2015, criminals defrauded the ATO of at least $2.45 billion in GST in the ‘gold scam’. In happened arguably because of ATO incompetence. We’ve explained this before.

In our view, to cover its tracks, the ATO is attacking innocent parties.

Around 2016 the ATO withheld GST refunds of around $209 million due to a large gold refiner. The ATO knew that the big refiner was not part of the GST gold scam. The ATO won in the Administrative Appeals Tribunal. The basis of the ATO win was (hold on to your hats) that emails between two people, not associated with the refinery company, discussed issues around the gold scam.

This email exchange amounted to gossip and hearsay, contained no evidence and was essentially idle chat between the people involved and was ‘hidden’ amongst 44,000 pages of ‘evidence.’ The persons were never questioned.

The company appealed to the Full Bench of the Federal Court and won (November 2020). In layperson’s language, the Federal Court effectively said that reliance on gossip to ‘invent’ a tax debt was nonsense.

But the ATO took a further step that demonstrates just what a threat it poses to justice and the rule of law in Australia.

The ATO went to the High Court and asked the High Court to consider that the AAT ruling was correct. Think of that. In seeking ‘leave to appeal’ to the High Court, the ATO was saying that it has the right and legal capacity to invent a tax debt based on gossip.

In other words, if there were, for example, a Twitter or Facebook haranguing session between two people you did not know and they were saying that you were a tax cheat, then that would be enough for the ATO to declare you a tax cheat. The ATO could then raise a tax debt against you and proceed to collect that ‘debt’ by raiding your bank account.

This is not how justice in a rule-of-law society operates. Justice is based on facts and truth which are tested by examination and cross-examination. We are not held responsible for what we have not done because someone makes a gossipy comment.

Thank goodness the High Court rejected this ATO application. The company is not guilty. Gossip does not rule.

But consider further. The ATO has spent in excess of $40 million on legal fees pushing this case. Ordinary taxpayers and small business people cannot defend themselves against such ATO aggression.

In asserting its right to raise tax debts based on gossip the ATO is saying that it is the law and not subject to the rule of law.

This cannot be allowed to continue. Justice must prevail. We need action if tax justice is to be delivered in Australia. The case for reforming the ATO just keeps getting stronger.

Be afraid: Victoria’s 4th attempt at quarantine

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Be afraid. Last Thursday (8 April) the Victorian government restarted its Covid hotel quarantine program.

This is the fourth attempt. The first two attempts from March 2020 resulted in Covid being released into the community, months of lockdown and 801 deaths.

The third quarantine program attempt started on 7 December 2020. On that day Self-Employed Australia warned of problems. Our information was that basic, simple procedures were not in place and that quarantine ‘HQ’ was dysfunctional. By 12 February 2021 Victoria was back into lockdown.

Procedure breaches were simple. For example, staff who had close contact with quarantined travellers and who were supposed to work in isolated rooms were called into mass staff meetings. Just plain dumb.

Even if Covid-19 was ‘unprecedented’ (although on basic facts it was fully expected and known), the health and safety breaches were overwhelming of basic, common-sense things.

Let’s hope this fourth attempt will be more successful. Perhaps it might be better. Our information is that, sometime around early March 2021, WorkSafe inspectors ‘marched’ into Quarantine HQ asking specific questions. “Show us your policy on this?” “Where are the instructions for that?” and so on. This panicked bureaucrats who couldn’t supply immediate answers.

Since then, we believe that WorkSafe has essentially taken control oversight of the quarantine program. Take one example. All men working in quarantine must be clean-shaven. This is to ensure a proper seal when wearing face PPE.

Even with WorkSafe oversight there are big procedural gaps.

Some six weeks or so ago, when vaccination of quarantine staff started, the instruction was that vaccination was voluntary. Staff planning happened accordingly. But now vaccination of all quarantine staff is compulsory. It will take several weeks to get additional potential staff vaccinated. This is basic dysfunctional management.

But there’s more! Covid outbreaks from quarantine have a set pattern. The first line of infection is from infected travellers to quarantine staff. Then from quarantine to, most commonly, the staffs’ immediate family or house mates.

New South Wales has a program of vaccinating quarantine staff and the staffs’ immediate family/house contacts. That is, they’re vaccinating to create two lines of first-level defence. And Victoria? Nah! Quarantine staff are being vaccinated but there’s no reported intention to vaccinate quarantine staff family/house contacts.

Again, what’s being witnessed in Victoria is dysfunctional management. It’s not Covid itself that is the immediate problem. It’s the management of the quarantine system that is the threat to the health and safety of all Victorians. This is why we insist that WorkSafe must prosecute the Victorian government over the 801 deaths.

If prosecutions don’t occur, the full extent of the dangerous dysfunctionality will never be revealed and correction and improvement of the system will not occur. Victorians remain at risk!