Self-Employed Australia

Historic day for small business people – Real unfair contract protections

November 9, 2023 by Self-Employed Australia

Today is historic for small business people and the Australian economy.

Today (9 November 2023) is the start of the new ‘beefed up’ unfair contract laws. These new laws have real ‘teeth’:

Businesses that ignore or breach the laws can suffer fines of up to $50 million.
Loopholes have been closed to stop businesses getting around the laws by making minor changes to their contracts and so on. The courts have wide powers to close unforeseen ‘loopholes’.

Have no doubt that these laws are a game-changer for small business people. It’s much bigger than most people realise.

And big businesses are responding. If they don’t, they are in trouble. We’re aware of at least a dozen big-name companies who have just released ‘upgrades’ to their standard form contracts.

We’ve prepared a two-page summary of the laws. Read it. You need to be aware of your rights and these protections. We provide a link to the government regulators (ACCC and ASIC) who enforce the laws.

And we think that we are entitled to claim a big chunk of credit for these laws coming into being.

We started campaigning for the laws in 2009.
It was a long, lonely, persistent seven-year campaign.
We were strongly opposed by some of the most powerful Australian big business lobbyists.
Success came in 2016 with the first laws for small business people.
Now, ultimate success—the laws with ‘teeth’ start today.

Of course, no-one does anything on their own. There was political support from politicians on all sides of parliament. Our huge thanks to The Australian business journalist, Robert Gottliebsen. He’s a champion of small business. But we can say that, without our campaigning, these small business protections would not be in place today.

The full story is here, showing our campaign back to 2009.

This is what we at Self-Employed Australia do. We focus on the long-term and are damn persistent.

We are delighted with today’s historic event.

But now we are focusing on defending your right to be you own boss. It’s staggering that we have to do this. The Albanese government’s Loophole Bill is the greatest attack upon small business people that Australia has seen. Here’s our campaign page.

Tomorrow (10 November 2023) I’m giving evidence before the Senate Committee that is reviewing the Loophole Bill. We’re being quite specific about the sections of the Bill that must be defeated if small business people are to exist in Australia.

Our submission to the Senate Inquiry is here (number 160). It’s big! But the issues are massive.

More soon.

Update from Parliament: Loophole (IR) Bill

November 3, 2023 by Self-Employed Australia

Yesterday I was in Parliament House, Canberra, attending a workshop/discussion organised by Senator David Pocock on the Loophole Bill.

Here’s a quick update on the progress of the Bill (6 minutes).

Defend your right (and the right of anyone) to be your own boss

October 27, 2023 by Self-Employed Australia

We’ve been sending you lots of information on the Albanese government’s small business destruction (Loophole) Bill currently being investigated by a Senate Committee. We have more information still to send you, but if you’re interested, there is a series of Australia-wide information sessions on this being run by the Master Builders Association.

You don’t have to be a tradie to attend, because this Loophole Bill kills YOUR self-employed small business whether you’re a tradie, an IT contractor, a hairdresser or whatever!

You can find more about the sessions (includes regional/country) and make a booking if you can attend through this link to the MBA campaign page.

We had one hairdresser contact us and say, “I just work for myself. Who’ll be my employer if I’m turned into an employee? My customers?” Brilliant question. And here’s the stupidity of this Bill. It literally declares self-employed, independent contractors to be employees. So, yes. Who’s our employer? Great question that the Bill doesn’t answer. Just dumb!!! (That’s a technical term for a stupid law by the way!)

Because this Loophole Bill is so complicated we’ve been sending you information and analysis in ‘bits’. But we’ve now updated our campaign page:

Defending Your Right to Be Your Own Boss.

We’ve put all our analysis in one spot and will keep updating this.

Remember—your future and your income as a self-employed person is in the hands of the seven independent Senators.

Trashing casuals’ incomes – The Loophole Bill

October 23, 2023 by Self-Employed Australia

Last week we explained how the Albanese government’s Loophole Bill will trash the incomes of casuals. That’s a pretty big claim on our part, particularly when we calculate the actual amounts that casuals can/will lose. That is, that casuals on:

minimum pay will lose up to $3,062 a year;
average pay will lose up to $5,354 a year.

But we don’t make such claims without proper analysis and facts.

In my Substack post on this we provide the analysis (8-minute read). And we include the full details of the wording of the relevant section in the Loophole Bill in our briefing paper to the Senate independents. This shows that the Bill effectively outlaws casual employment. This is how so many people (2.7 million of them) will have their incomes trashed.

You’d think that this is a very strange thing for a Labor government to do. Labor always says that it looks after low-income people, but this Bill clearly does the reverse. Why would they do this? Well, that’s for them to explain.

But Australian business columnist Robert Gottliebsen (23 October) has commented that the Loophole Bill:

“…is really a multitude of different actions, so people keep discovering new horrors as they study the pages, particularly the nasties hidden in the 500-page explanatory memorandum.”

Robert explains how the Bill attacks casuals’ incomes:

“Step one is to virtually abolish casual work by making the definition so complex that no one can risk employing a casual because the fines for paying people extra via the casual employment classification can be up to $93,000. Accordingly the casual labour “loophole” is closed.”

“Most existing casuals will need to transfer to full-time employment, or, more likely, part-time employee status. That means 2.7 million will receive a lower income.”

He says,

“There will be a riot when 2.7 million casuals discover they are a “loophole” and must have their cash pay cut.”

The issue is so huge Robert believes that if the Bill passes the Senate,

“…Peter Dutton is highly likely to become the next prime minister.”

After the massive rejection of Albanese and Labor’s attempt at the Voice, put this Loophole Bill on top—and anything could happen!!

Independent Senators – Your small business future in their hands

October 18, 2023 by Self-Employed Australia

Have no doubt that the future of your right to be your own boss, to be a small business person, is in the hands of the seven independent Senators in parliament.

On Monday and Tuesday this week I ‘walked the corridors’ of Parliament House, Canberra, meeting with Senator’s advisors and others on the government’s 284-page, highly complex Loophole (Industrial Relations) Bill. I’ll be returning to Canberra several times before Christmas.

We’ve provided you an overview of the Bill and a detailed analysis of how the Bill trashes contract law as defined by the High Court. We’ll be supplying more analysis progressively. But be very clear on the central thrust of this Albanese government Bill.

This is the greatest attack against Australian small business people ever seen. More details below.

What should be happening are proper protections for small business people. One of these is the unfair contract laws. Seriously stronger unfair contract law come into effect on 9 November and, across the board, companies are upgrading their contracts. But government departments are not subject to these laws. That is, government departments can have unfair contracts with small business people and get away with it.

On Monday morning (16 October), independents Senator David Pocock, Senator Jacqui Lambie and MP Allegra Spender co-sponsored a small business breakfast in Parliament. The large room was packed. I had a chance to push this issue.

I put it to the Senators that this must be fixed. A one-paragraph amendment to competition law would stop this double-standards shocker.

Here I am putting this proposition. Senator David Pocock is behind me on the left of the picture.

But back to the Bill. The consequence of this Bill is that:

2 million self-employed people will be declared to be employees. This will kill incomes.
970,000 people who use gig work for top-up income will have their incomes trashed.
8 million casuals will be forced to be full/part time employees, losing 6 per cent of their income.

For just the casual workers, people on:

minimum pay will lose up to $3,062 a year;
average pay will lose up to $5,354 a year.

That is, the Albanese government is engaged in a massive attack against people’s incomes.

This is no exaggeration. These conclusions are based on hard analysis of the words in the legislation with clear documentation on what this means. But be alert. The Albanese government is conducting a scandalous misinformation and disinformation campaign to push this Bill through.

We have more detailed explanation papers that we’ll release shortly. You can judge for yourself. We’ve already supplied these to the independent Senators and MPs and they are listening.

What the Loophole (IR) Bill means for you – some detail

October 11, 2023 by Self-Employed Australia

In our news alert to you last week we gave you a broad overview of the government’s IR ‘reform’ Bill, the (Closing Loopholes) Bill 2023. We said that we’d progressively provide you our detailed analysis and this is the first instalment.

This first analysis explains how the Bill aims to override and neuter the Australian High Court’s determination of who/what is an independent contractor. This is a pretty serious move. This is NOT the addressing of some ‘loophole’ in the existing Fair Work Act, an Act created by the Rudd/Gillard Labor governments in 2009.

I’ve posted a Substack article analysing this part of the Bill. It’s around an 8-minute read. We hope this will give you some clarity. It’s free to access.

First step understanding—summary

But just to understand how serious this is, at its core, the Bill seeks to destroy the very legal basis of commercial and contract law in Australia. It’s staggering, but this is what the Bill seeks to do.

The most significant proof supporting this statement is that the Bill itself states its intent to repudiate, neuter and overturn the declaration made by the High Court in February 2022 on what constitutes commercial and employment contracts. (I show the clause in the Substack post.) The High Court must be ignored, according to this Bill.

The Bill is based on an underlying position that no individual Australian has the capacity, maturity, intelligence or wit to earn their income through the commercial contract. In effect, its ‘says’ that Australians are incompetent halfwits who must be denied their right and capacity to be self-employed, to be their own boss.

It is a Bill that denies the spirit of aspiration, ambition and ‘get up and go’ that so defines much of what it means to be human. As self-employed people we probably don’t understand the extent to which our very existence affronts the existing establishment status quo. This Bill is an attempt to squash us. This is not an exaggeration, but a statement of fact based on the wording of the Bill.

The 284 pages of the Bill contain many sub-agendas scattered throughout, but all captured within the central theme stated above. It’s a complex read, but to analyse the Bill, we had to split it into its ‘bits’ by colour-coding it. By doing that we were able to identify its sub-agendas and discover its overarching theme.

The parliamentary process

The Bill is being investigated by a Senate Committee with hearings currently underway. The Committee website is here and submissions here. Curiously, our 13,000-word submission has not yet appeared on the website.

Parliament sits from this Monday 16 October for 2 weeks. I’ll again be in parliament, ‘walking the halls’, talking with Senators and MPs and their advisers on the Bill. We’ll keep you updated.

A bill to destroy self-employed small businesses across Australia

October 2, 2023 by Self-Employed Australia

We really need to let you know what’s going on with the new industrial relations Bill, called the ‘Loophole Bill’.

Hold on to your hats. This is something much more radical and far-reaching than anyone could have expected. To call it a Bill closing ‘loopholes’ is to lie. Its contents prove the lie.

The Bill 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.

To remind you, the Bill:

Is 284 pages long, with a 521-page Explanatory memorandum.
Covers multiple agendas.

The government had wanted this passed before Christmas this year, but the Senate has delayed it until February next year. The Senate is holding an inquiry. Submissions were due last Friday, 29 September. We’ve put in a submission that we can’t make public until the Senate Committee formally accepts it.

Putting our submission together was a formidable exercise and we haven’t even covered all the issues. But our 13,000-worder gets stuck into core, major items.

In summary:

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;

as well as:

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.

Our line-by-line analysis of key terms, sentences and structures of Bill shows how it achieves the above 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.

We’ll release our analysis of the Bill to you in ‘bits’ over the next few weeks so you have a chance to absorb it all.

Fearing the truth – Australia’s government institutions – ATO

September 19, 2023 by Self-Employed Australia

In April 2018 we were intimately involved in the production of the ABC Four Corners program ‘Mongrel Bunch of Bastards’. The program exposed evidence of the ATO’s abuse of small business people. The program brought real ‘grunt’ to our campaign to reform the ATO. And we have to say that in our observation the ATO has improved since then. There’s still much to be done, but it is better.

Included in the Four Corners program was the profiling of Richard Boyle. Richard was a case officer in the ATO who exposed ATO abuse of small business people and he explained this on the program. The consequence of this is that Richard was charged and is being prosecuted. Richard has become one of Australia’s most high-profile whistleblowers. He faces a lengthy jail sentence if convicted.

In the production of the program, and subsequently, SEA has had considerable dealings with Richard. In July 2022, SEA released a statement joining the call for the charges against Richard to be dropped. In the statement we explain our dealings with Richard as well as our view of him and his whistleblower actions. We said:

…in our view the charges against Richard must be considered within the ambit of Richard’s whistleblower activity as it exposed malpractice within the ATO.

…Richard’s whistleblowing action (and the activities related to that) were done in order to protect taxpayers from garnishee activity by the ATO which breached the ATO’s own procedural requirements.

In all our dealings with Richard we have found him to be a person of the highest ethical and moral standards.

Our statement provides the full details of the independent investigations into Richard’s whistleblowing. Those investigations detail the maladministration of the ATO at the time and, in our view, effectively support the propriety of Richard’s exposure of the truth.

This Monday (18 September 2023) the ABC 7.30 Report ran a full segment on Richard Boyle. This time they interviewed a small business taxpayer (Dirk Fielding) who Richard had helped in 2017 and who, through the ATO’s actions, has been used to generate Richard’s prosecution. Dirk refers to the prosecution as ‘insanity’.

Further, last week some 30 MPs and Senators joined the call to have the charges against Richard dropped. We again join that call and reiterate the reasons for the dropping of the charges as we explained in our statement of July 2022.

Make the gander do what the goose must do

September 13, 2023 by Self-Employed Australia

The Federal Small Business Ombudsman is conducting a review into how the Commonwealth government behaves when it buys goods and services from small businesses. We’ve made a submission. Our submission is titled ‘The gander should be required to do what the goose is required to do’.

Specifically, we think it’s crazy that it’s not illegal for government departments to have unfair contracts with small business people. But it is illegal for private businesses to have unfair contracts with small businesses. Talk about double standards!

We’re asking the Federal Small Business Ombudsman to recommend that this be fixed. And we’ve suggested the exact amendment to the competition laws that would do this. The amendment would read:

Application of Act to Commonwealth and Commonwealth authorities

(1) Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in relation to the unfair contract provisions of the Act in so far as the Crown in right of the Commonwealth engages in trade or commerce, either directly or by an authority of the Commonwealth with a small business.

This is similar to what we’re asking of Senators in our campaign requesting the defeat of the ‘employee-like’ provisions of the government’s new ‘spaghetti bowl’ industrial relations laws. We want more protections for self-employed small business people. And having government departments required to comply with unfair contract laws is one of those much-needed protections.

These unfair contract laws will have real ‘teeth’ when the ‘beefed up’ legislation takes effect in November this year. Our submission has a summary of what ‘unfair’ means and what the new ‘teeth’ are.

Frankly, government needs to stop treating the rest of us in the community as a gaggle of geese!

Breaking News – Anti-self-employed IR Bill delayed

September 7, 2023 by Self-Employed Australia

We informed you yesterday about our efforts in Parliament House on Monday around the new anti-self-employed industrial relations Bill. We called it a ‘spaghetti bowl’ of legislation.

The government had wanted to have the legislation passed before Christmas. However, according to media reports, the Coalition and the independent Senators have this evening voted to push consideration of the Bill out to February of next year.

The Senators have declared that the Bill requires considerable time to understand it. This is not surprising. One prominent labour law professor, Andrew Stewart, is quoted in the media as saying “The drafting is very complex… that it’s as impenetrable as what many of us think. And I don’t envy you [the Senators] trying to make sense of it.”

We think this move from the Senators is common sense and we thank them for this.

As we said yesterday, we are going to seek to break the Bill up into its bits so that we can understand it before doing our analysis. We will share this with the Senators and on our website for SEA members/supporters.