Self Employed Australia

"Everyone needs an Advocate"

“Everyone needs an Advocate”

Defending the self-employed

100,000 (plus) hear the message – Self-employed under attack

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Spectator-TV-100Recently I was interviewed on Spectator TV where I explained the attack against self-employed people being prepared by the Albanese government. I presented a simple example of how the promise to provide ‘holiday pay’ was in fact a con that will take money away from people.

Someone has taken a 5-minute clip from the longer interview and posted this on Twitter. This has broken through the 100,000 views mark in just over 24 hours of posting and continues to grow.

You can access the twitter post here.

Spectator-TV

We hope this provides a simple explanation.

We started our campaign on this in March this year – the Be Your Own Boss campaign where we provide lots of detail.

We have many more direct discussions in the pipeline with Senators and MPs and their advisers.

War Against Tradies

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war-against-tradiesLast week we discussed the common sense displayed by the Victorian government in its approach to the gig (‘employee-like’) worker issue. Yes—record in you diaries that we’ve actually praised the Victorian government on this issue!

But Victoria’s common sense seems not to be having any impact on the nonsense from the Federal (Albanese) government on the issue. We’ve been explaining in our ‘Be Your Own Boss’ campaign that the Albanese government’s ‘employee-like’ agenda, if enacted in law as it promises, will strip away the right of each of us to be our own boss (self-employed).

Be Your Own Boss

Our current campaigning is focused on trying to block in the Australian Senate the ‘employee-like’ legislation that the Albanese government says it will create this year. We’re having positive, initial discussions with Senators. But a lot of work will need to be done once the draft legislation appears.

Understanding the importance of this issue is remote for anyone not intimately familiar with the legal difference between the commercial and the employment contract. That’s no surprise. So, we need to keep explaining.

I’ve posted a piece on Substack where I describe the predictable impact of the promised ‘employee-like’ laws on Australia’s self-employed tradies. You know, the people who actually do things, like plumbing, electrical work, and so on. Yep, the people who actually make sure that all that stuff actually works!

The promised ‘employee-like’ laws will set up a framework that will force every independent tradie into the clutches of the industrial relations system by imposing a de facto, compulsory unionism on housing tradies through the back door.

Currently, tradies are their own bosses because they work under commercial contracts not employment contracts. The legal trick the government has promised is to create legislation that requires commercial contracts to be controlled by the Fair Work Commission (FWC). Effectively this trashes the notion and structure of a commercial contract, and by legislation turns commercial contracts into pseudo-employment contracts.

Once this is done, construction unions will proceed to impose collective enterprise agreements across the housing sector, just as they do with the commercial construction sector. Read the full explanation here.

ATO

You’ll be well aware of our long-running campaign to have the ATO treat self-employed, small business taxpayers with fairness. The ATO has just released an update to its Taxpayers’ Charter following a review. We had input into the review.

The Charter is supposed to lay out the ATO’s commitment to you in terms of how it will deal with you as a taxpayer and your rights. We’re having a good look at the revised Charter and will put together an analysis soon.

Common sense about ‘Gig’ from the Victorian government

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gigHere’s one for the history books. We’re actually complimenting the Victorian government on its ‘gig economy’ policy. Until now we’ve been a strong critic of the Victorian government on this.

In July 2020 the Victorian government released its report into the gig economy. (Just to remind you, we explained what gig work is last week—e.g., Harry Styles, etc). The research from the report is actually very good. (7% of the workforce ‘do’ gig, but less than 0.2% do gig for full-time income. That is, it’s ‘top up’ income for the bulk of gig workers.)

BUT, Recommendation 6 of the Victorian report effectively called for the outlawing of independent contracting (self-employment). However, contrary to this recommendation, the policy now released by the Victorian government is very sensible. It doesn’t do anything to harm self-employed people, doing gig or direct work, but puts in place good protections within a commercial framework.

This is exactly the sort of thing we support and want to see. And it’s completely counter to what the Albanese government has plans to do, which will be highly destructive of small business.

Here’s the Victorian government’s policy. It covers ‘gig’ platforms (e.g., Uber, etc). It has six standards as follows:

Victorian Government gig platform code—Standards

  • Platforms should provide consultation processes, forums or committees to allow for discussions with non-employee on-demand workers…
  • Platforms should ensure that the terms and conditions of the applicable contract are clear and able to be understood by non-employee on-demand workers
  • To assist non-employee on-demand workers to make an informed decision about whether to accept work, platforms should provide them with key information in writing about:

I. what they will earn should they complete a job, and how earnings are calculated
II. typical costs associated with the performance of work
III. their conditions of work
IV. the factors that affect how work is allocated by the platform (such as customer ratings).

  • Fair and Transparent Independent Dispute Resolution.
  • Platforms should not inhibit non-employee on-demand workers from freely associating to pursue improved terms and conditions relating to their work arrangements, where permitted by law.
  • Platforms must comply with their duties under the OHS Act.

Now this is common sense, as opposed to the Albanese government’s planned nonsense.

This Victorian government policy now forms a major part of our advocacy work in the Federal Parliament. We’re actively talking with independent Senators asking them to oppose the Albanese government’s plan. We’re now promoting the Victorian Standards to Senators as the way to go forward.

Our campaign is only just warming up with a full range of trips to Canberra and other places organised and being planned. Many thanks to the support we’ve been receiving from many of you which enables this critical work.

Labor’s ‘employee-like’ agenda assaults competition law

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employee-likeWe informed you on 7 May that the Federal government’s anti-small business plan was progressing. It released a Consultation Paper on 13 April requiring submissions by 12 May. We’ve lodged our submission opposing the planned legislation. The submission is here.

Sorry, but the submission is long—yep, 11,000 words.

The reason for the length is that the government’s plan is presented as if it’s a ‘tweaking’ of law and of limited application. It’s not. It’s a massive assault against the very principles and practices of contract that determine your right to be your own boss, to be self-employed. This can only be understood by understanding the detail.

We’ll explain the detail in shorter ‘chunks’ through this and a series of future news alerts. If you have queries, please contact us.

Competition law ‘protects’ self-employed, small business people

Today we cover the grave threats posed to competition policy and law, the jurisdictional authority of the Australian Consumer and Competition Commission (ACCC), and the right of people in Australia to earn their income as a small business person.

Competition law regulates commercial contracts.

Employment law regulates employment contracts.

  • The government’s plan is to allow employment regulation to regulate commercial contracts.

This is a massive step across a fundamental threshold.

The plan is to legislatively redefine commercial contracts to be employment contracts on the alleged grounds that some self-employed people are ‘employee-like’.

This defies the High Court’s declaration in February 2022 (Personnel Case) that:

  • “The employment relationship with which the common law is concerned must be a legal It is not a social or psychological concept like friendship…”

In effect, the plan is to ‘invent’ a new legislative contract form that is outside common law to thwart common law contract.

This also breaches Australia’s International Labour Organisation obligations where the ILO declared in 2006 that:

  • “National policy for protection of workers in an employment relationship should not interfere with true civil and commercial relationships…”

Competition clash

The provisions will immediately set up a clash between competition law and employment regulation. Specifically, the ACCC and the Fair Work Commission (FWC) will both be required to regulate commercial contracts that have been declared ‘employee-like’, but each with different and opposing public policy objectives. The ACCC to prevent collusion over pricing and ensure competition. The FWC to facilitate price collusion thereby creating the circumstances for anti-competitive behaviour.

This is being done under the pretext that some self-employed people need ‘protections’.

But protections are already in place:

  1. Sham contracting laws in Australia are possibly the strongest in the world.
  2. The Independent Contractors Act outlaws payment below similar pay to an employee.
  3. ‘Beefed up’ unfair contract laws begin in November 2023 and will be handled by the ACCC.
  4. Collective bargaining for the self-employed is already available through the ACCC.
  5. Improved, easier dispute resolution can be made available through small business ombudsmen, etc.
  6. New ‘pay on time’ laws are currently being considered.

We are now undertaking a major advocacy campaign directed at Federal MHRs and Senators. We’ll keep you informed.

Labor’s agenda to outlaw the self-employed – Here it comes!!

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Labor's-agenda-outlawWe’ve alerted you in the past to the Albanese government’s plan to deny people the right to be self-employed. It’s an attack upon your basic freedom to decide how you earn your income. That attack plan is now unfolding.

The Department of Employment and Workplace Relations (DEWR) has released a consultation paper on the implementation of Labor’s plan. We’re preparing a detailed submission (due on 12 May). Legislation is set for the second half of this year.

Be very clear. We totally reject this agenda. It’s bad on many fronts. We’ll explain the multiple problems progressively over the following weeks.

We have started talking to Senators and MPs about why this is so bad and should be stopped. We’ll be very actively pushing to defend the right to be self-employed.

We’ve prepared a summary of the DEWR consultation paper. We’ve tried to reflect what they are saying accurately.

In broad summary, Labor’s plan is to:

  • Treat the commercial contract used by self-employed people as an employment contract.
  • Regulate self-employed people through the Fair Work Commission, thus creating conflict with commercial law and regulation by the Australian Consumer and Competition Commission. The DEWR papers says that this will be done on a limited selective basis. But those limits are as yet unknown.

Frankly, we see our campaign as perhaps the most important one that we have conducted in SEA’s 24-year history. We must attempt to stop this.

We argue that Labor’s plan is a recipe for commercial contract confusion and uncertainty. We find the consultation paper to be a confused hotchpotch itself, as it is forced to weave a path through well-established legal, regulatory and policy principles and practices. This is so because the plan would generate conflict with those principles and practices on a wide scale.

At this stage we seek to understand the detail of Labor’s agenda. The difficulty is that the agenda is wrapped up in seemingly good intentions which mask its true consequences.

Many people have asked us for more information. We suggest that you read our summary first and see what you think. We’ll release our analysis progressively.

Self Employed. Marxism. Corruption. Not Above The Law

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discernableAt Self-Employed Australia we’re covering what seems to be a wide range of topics. In fact, these all come back to a central ‘thing’ that we seek to protect—namely, your right to be self-employed should you wish. That is, your right to Be Your Own Boss.

One of our great supporters is Discernable, an on-line blog television channel run by Matt Wong. Matt’s a true self-employed, small business innovator. He’s invested his own money, time and effort to pursue a vision that says that media news and issues coverage doesn’t have to be slogan-slamming but can undertake patient, intelligent coverage of issues.

If you haven’t watched Discernable we highly recommend doing so. If you’re like us, you’re likely to find the long (frequently 2 hour) interviews engaging, addictive and binge-watchable. The stories that come from Matt’s guests are fabulously insightful.

Matt has interviewed SEA’s Ken Phillips on several occasions covering our Not Above The Law campaign and more. Just this week Matt interviewed Ken and SEA chairman Nick Karamouzis.

The interview is available here.

discernable

We covered a range of topics. And to make it easy for you here are the timeslots of the issues we covered.

marxism

We trust our interview gives you a good handle on our campaign efforts.

Labor to deny self-employed access to protections

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protections-deniedThe Albanese government’s determination to legislate an ‘employee-like’ definition will introduce radical law that will deny protections to Australia’s self-employed people.

The government says that it doesn’t want to create any ‘unintended consequences.’ Whether the consequences of its actions are intended or unintended is irrelevant. Denial of protections is what will occur.

Self-employed people currently enjoy protections from:

Further, Australia has built a system of cheap, quick dispute resolution through the network of state and federal small business commissioners and ombudsmen.

This entire protection system will be thrown into chaos and confusion with the creation of an ‘employee-like’ definition.

This is because self-employed people are regulated and protected through commercial law which is entirely different to how employees are dealt with under employment law.

The government’s agenda will defy decisions of the global protector of workers’ rights, the International Labour Organisation. In 2006 the ILO declared principles which stated that it was necessary to:

  • protect the freedom of independent contractors to enter into services contracts;
  • recognise independent contracting as a legitimate form of work arrangement that is primarily commercial; and
  • prevent interference with the terms of genuine independent services contracts.

These principles are embedded in the Australian Independent Contractors Act.

And more.

On certainty

In February 2022, The Australian High Court made the most important decision on the definition of self-employment in more than 50 years. In its decision the Court stated that:

“…It is the task of the courts to promote certainty with respect to a relationship of such fundamental importance.” (at par 58)

The government’s ‘employee-like’ agenda will create uncertainty, the very opposite of what the High Court says needs to be achieved.

Legal relationship is not social/psychological

The High Court also said:

“The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship.”

The government wants to turn a social or psychological concept (‘employee-like’) into a legal form through legislation. This defies and erodes the common-law distinction between employment and self-employment which the High Court says must remain distinct.

Bad consultation

The government’s recently announced ‘consultation’ on the issue does not raise or seek to discuss any of these vital issues. This is not ‘consultation’. It is a process of seeking to ram through an agenda that is bad for self-employed, small business people.

We’d appreciate any support you can afford in our campaign to defend the right to be self-employed. It’s important.

Defending the self-employed: 2023 Campaign to counter the creeping attack!

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defendingThere is no doubt that, in the second half of this year, major legislation is going to be pushed through Federal Parliament that will do harm to self-employed people.

We know this because of the government’s stated agenda. In a significant speech to the National Press Club on 1 February 2023, the Workplace Relations Minister, Tony Burke, laid out the government’s wide-ranging agenda. There are four items on that agenda list that we must oppose.

These are:

  • The creation of ‘employee-like’ legal definitions for self-employed people.
  • Limiting the self-employed’s capacity/rights to engage in the gig economy.
  • Imposing business-crushing ‘employment’ regulations on owner-driver truck drivers.
  • Giving the Fair Work Commission power over self-employed people.

Each of these agenda items is presented by the government as a form of ‘protection’ for the self-employed. But in fact these items reduce the right of Australians to be their own boss. There’s the harm.

We have long fought for protections for self-employed people. But these protections can and must come through commercial law and regulation.

The government’s approach on the items listed above is instead a process of denying the full right of people to be self-employed and instead forcing people into employee-like situations. This approach stems from an ideological view that only employment regulation provides workers with protection. This is a wrong, narrow and harmful perspective. Wherever this is done, great harm is inflicted on self-employed workers. Think of the AB5 laws in California which harm truckers and many others. We must try to prevent such harm being done in Australia.

We’re not saying that the Albanese government is all bad on the self-employed front. In fact, we were and are full of praise for its speedy passing of the ‘beefed up’ unfair contract (protection) laws in October last year. This is exactly the model of protection laws that self-employed (own boss) workers need—namely, protections under commercial law. But where the government heads in the wrong direction we need to oppose it.

Today we’re announcing the start of our campaign. This means:

  • Writing submissions (even if not invited to do so).
  • Communicating directly with government advisers and MPs.
  • Seeking support from the Coalition opposition and Senate/House independents.

One thing that we have learnt over many years is that if we don’t go to Canberra and walk the halls of parliament knocking on doors, presenting our views, and raising awareness, then we will not get anywhere.

We’re asking for your $ support. This campaigning costs money. It requires effort, persistence and money. We will put in the effort and the persistence. But our only revenue is from you—our members/supporters.

You can contribute/Join here as a:

  • Full member ($44 a month)
  • Standard member ($22 a month)
  • Campaign member (you choose $)

More information will follow as our campaign unfolds.

PS: You can also follow Ken Phillips through his Self-Employed Aren’t Stupid, Substack postings.