Self Employed Australia

"Everyone needs an Advocate"

“Everyone needs an Advocate”

Covid-19

WorkSafe concedes a ‘bit’. But not enough. Much more work to be done

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long-journeyIf you’ve been following our Not Above the Law campaign, you’ll likely be aware of a BIG development yesterday. Early in the afternoon WorkSafe Victoria announced that it is prosecuting the Victorian Department of Health over the hotel quarantine disaster of 2020.

This triggered a media storm with coverage across the nation. After I went into a deep-dive analysis with our lawyers, I then spent all afternoon doing media interviews – ABC (radio, TV, print), SkyNews, Herald Sun, 3AW radio and others. Thanks to everyone for the huge number of emails and texts. Pardon me for not responding. I thought it best to do so now.

Here is some background information:

Ombudsman: Yesterday morning we lodged our detailed complaint to the Victorian Ombudsman about WorkSafe not complying with the law by failing to send its investigations to the Director of Public Prosecutions. The WorkSafe announcement yesterday afternoon does not change that complaint one bit. WorkSafe still must provide its investigation materials to the DPP on all the parties that they are not prosecuting. WorkSafe continues to fail to apply the law on this.

Thanks to everyone who lodged complaints with the Ombudsman over the last week. It’s been huge. If you have not done so, please still lodge a complaint.

Channel 9 Advert: I am advised that, as of late yesterday, Channel 9 has decided to run our advert. Again, thanks to everyone who lodged complaints with Channel 9. It’s also been huge. But I’ll be cautious. I won’t say it’s a definite until the first advert airs. That should be very soon if arrangements fall into place.

WorkSafe Letter: WorkSafe wrote to us late yesterday afternoon essentially saying, ‘the matter is now closed’. We wrote back saying ‘no it’s not!’

Here’s a key issue:

Criminal law: Work safety breaches are indictable criminal offences. An ‘organisation’ cannot commit a criminal act. Only people do. A gun does not commit murder. The person who pulled the trigger commits murder. Common sense would suggest that the Department of Health cannot not commit criminal OHS breaches. The people who control, direct and run the Department commit the offences.

Therefore this issue is not closed by WorkSafe’s prosecuting the Health Department. We are continuing with our campaign. We are not stopping. We are just warming up.

How will we succeed?  I keep being asked, ‘how will we get WorkSafe to undertake prosecution of individuals’? My reply is ‘by doing what we have been doing’. This is a people movement. We must, and will keep delivering analysis and messaging about the need for the prosecution of Departments and individuals. We have confidence in the voice of the people!

And you, our SEA members, are at the core of this. The campaign has taken us this far in getting yesterday’s breakthrough. But it’s only happened because of your support — people contributing $5 and up, putting in time and effort (contacting the Ombudsman, etc) and more.

Our huge thanks. We should all be pleased. But there’s still a lot more to be done!

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.

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.

Covid and the oppression of government regulation and regulators

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As we look to 2021 to be a better year than 2020, perhaps one of the shocks of Covid-19 has been how quickly our freedoms and liberty have been crushed under the weight of health dictates. It’s been done for our own good—that is, to keep us all safe from a silent, unseen enemy killer.

With luck, we will emerge from the Covid crisis this year with freedoms being returned. One fear, however, is that once governments, whether of left or right persuasion, taste the seductive power of authoritarianism, they become addictively hooked. There’s nothing some bureaucrats love more than the scent of their own power first thing in the morning.

That’s why at Self-Employed Australia we were pleased to receive an invitation from the office of Prime Minister and Cabinet to make comment on a regulation review it is undertaking. The review is looking at the expectations of regulators, their reporting and so on. In other words, the Prime Minister is reviewing how regulators should be held accountable. That’s a positive thing.

In our January submission to PM&C we’ve said that instructions to regulators from Parliament should be clear and transparent. We’ve said:

Our recommendation to the PM&C review is to keep firmly in mind that the community needs clear “road signs” in all regulatory matters. There should be a simple question asked of all regulations, namely:

  • Does the regulation provide clear and practical sign posts that can be understood by the community and the regulator in their day-to-day application?

That is, regulators should not be in a position where they can apply their own view of unclear laws to the extent that the regulator effectively become a law-maker ‘on the run’.

We cite the example of the Australian Taxation Office, which all too often is in a position where it effectively ‘creates’ law because unclear legislation enables them to do so. We’ve promoted our ATO reform program as a pathway to fixing the this problem. Here’s our explanatory video.

As Covid recedes (we hope), the balance between health authoritarianism and democracy should be a topic for longer term review. That is, in times of health crisis, are and should health bureaucrats be held accountable under rule-of-law principles?

One example of where bad law gets it totally wrong is in California and its making of self-employment illegal. Go figure? We’ve covered this before. There’s a new YouTube video about this Californian ‘AB5-kill self-employed’ law that explains this. It has good lessons for Australia … of what NOT to do….

800 deaths – The facts are clear. The Vic government must be prosecuted

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It would be dangerous to forget or ignore that 800 people died due to the Victorian government’s hotel quarantine disaster. We cannot simply ‘move on’ and pretend that 800 people did not die. That’s dangerous. That’s unsafe.

That’s why today we’re launching the next phase of our campaign to push for the prosecution of the Victorian government under work safety laws.

We write to WorkSafe
Here’s our letter, sent today, to the Victorian WorkSafe Authority, the prosecuting body. We provide them evidence that hotel quarantine plans should have been in place when they were not.

Hong Kong had clear plans that could have been used.

We remind WorkSafe of evidence from one officer who said

“Each outbreak was treated like a secret and nothing seemed to change…”

And a doctor who warned of bad procedures saying

“This is placing individuals at risk”

The pandemic was NOT unprecedented
In separate facts we explain why the Covid pandemic was not unprecedented and was fully expected and planned for, BUT the Victorian government forgot(?) to do a hotel quarantine plan!

And here we explain how the work safety laws apply.

Into and during 2021
This next phase of our campaign will continue through all of 2021. This is just the start. We have a research and legal team. We are preparing more evidence of why prosecution must occur. We will make this public and deliver it to WorkSafe.

Join/support our campaign. You can contribute $s here if you can.

Register your details here for information and updates.

Bad things happen if good people do nothing!

Victoria Covid-19 – Blaming the self-employed and anyone else in sight

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Having lived in Melbourne all my life, I’m ‘picking up’ that this Melbourne Covid-19 deep lockdown has induced fear. Fear is in the Melbourne air.

Yes, it’s fear of the virus. But it’s also fear of continuing incompetence by the Dan Andrews government. The incompetence has led to the Stage 4 lockdown. This is not a party political comment. Labor governments in Western Australia and Queensland have so far successfully and impressively contained the spread of Covid-19.

Instead, there’s something uniquely ugly about the Dan Andrews-led government we’ve seen to date.

  • It has the stench of double standards. One rule for some people. Another rule for others. “You can’t do x. BUT it’s okay if some do!!” This has resulted in confusion about what people can and cannot do. Perhaps the Stage 4 lockdown will be consistent?
  • Gross administrative incompetence.
    • The blame for the ‘sex in quarantine hotels’ scandal lies squarely at the government’s feet. Premier Andrews refused Australian Defence Force personnel oversight. Every other state welcomed the ADF. The virus surged out of the hotels.
    • Management of Covid-19 testing, reporting and tracing is compromised. There appears to be a confused bureaucracy. Just one example from last week. A business shut down due to one staff member testing positive. Other staff were refused testing by the health department, yet the doctors wanted to test the staff. What the hell?!
  • Blame everyone but yourself. ‘It’s not me’ Premier Andrews has constantly stated in press conferences reported by media. He’s blamed the federal government for aged care problems, families for whatever (?), workers for going to work, the private sector and young people amongst many others.

We feel compelled to jump into this ‘blame others’ game when the Premier directs blame towards self-employed people. Last week Premier Andrews again blamed what he called “the structural weakness in our economy … insecure work”. This included contractors (the self-employed). We reject that. The Premier’s own report on ‘insecure work’ shows it is a positive contributor to society. Here’s our summary of the report.

This is part of the Premier’s declared war on the self-employed we reported in mid-June. The Premier has an agenda to make self-employment illegal, to wreck the lives of self-employed people. This reflects the authoritarian approach under Dan Andrews. It’s ugly and induces well-founded fear in Melbourne/Victoria.

Is there now a change in attitude? Perhaps. In press conferences over the last two days, Premier Andrews has been more inclusive. He’s thanked the PM for assistance, including ADF help. We haven’t noticed as many ‘blame others’ statements. If that marks a change in attitude, we can only welcome it.

Jobkeeper and JobSeeker Extension Information

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Last week (22 July) the Morrison government announced that JobKeeper and JobSeeker are being extended past the current cut-off of at the end of September. But there are changes to eligibility and the amounts being paid.

We’ve waited a week to produce this update to check some details with the ATO. Be aware that the legislation for the extension has not passed Parliament, so our summary below is the best information available at the moment.

Current JobKeeper – No changes. Everything is the same until 27 Sept 2020. See here.

Summary: JobKeeper extension (after 28 Sept 2020)

Employees and self-employed people are still both eligible as per current rules.

Payments are reduced (and will be smaller still if you worked fewer than 20 hours a week in February 2020—see note below):
$1,200 a fortnight for October, November, December 2020 (28 September 2020 to 3 January 2021). But
$750 a fortnight if you/your employees worked fewer than 20 hours a week in February 2020.
$1,000 a fortnight for January, February, March 2021 (4 Jan 2021 to 28 March 2021). But
$650 a fortnight if you/your employees worked fewer than 20 hours a week in February 2020.

Payments continue to be made in arrears.

Turnover requirements change

Projected turnover is out. Actual turnover will be used.
For small businesses your turnover must still be down 30%+, but this must be down
in both the June & September 2020 quarters for the $1,200 ($750) payment;
in the June & September & December 2020 quarters for the $1,000 ($650) payment.

If you are not currently on JobKeeper, you can still apply if your turnover then drops during the extension period.

Declaring turnover

This is assessed on your BAS return for actual declared GST turnover.
You do not include any JobKeeper receipts in your turnover because JobKeeper doesn’t have GST. (We have checked with the ATO on this.)
Generally, you compare your 2020 quarterly turnover with your 2019 same quarter turnover (eg: September quarter 2020 to September quarter 2019 and so on).

Hours worked—Self-employed
Whether you have worked 20 hours more/less each week is based on the work you did in February 2020. That is, if you worked more than 20 hours a week in each week of February 2020, you will need to prove that to the ATO.

Based on our long experience with the ATO we expect that the audit division of the ATO will conduct aggressive audits of this. We cannot find any information on what hourly work records the ATO expects of you, particularly as a self-employed person. We strongly urge that if you intend to claim the higher amount (+20 hours) that you go back to your work records first and check that you have significant proof of hours worked. This should include invoices to clients and so on.

Summary: JobSeeker
Higher Covid-19 payments for unemployment (JobSeeker) and other social security have been extended to the end of December 2020, but the amounts drop.
On top of the $565.70 per fortnight you receive

Plus $550 per fortnight to 24 September 2020 (current) but this drops to
Plus $250 per fortnight from 25 September 2020 to the end of December 2020.

Government source documents
Check the government’s fact sheets for full information:

JobKeeper here.
JobSeeker here.