Self Employed Australia

"Everyone needs an Advocate"

“Everyone needs an Advocate”

Defining Self-employment

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.

Should gig workers like Mick Jagger, Beyoncé and Harry Styles be worried?

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In late April, we alerted you to the new Australian Taxation Office (ATO) reporting rules for gig workers. We had some queries asking, “what are ‘gig’ workers?” That’s a pretty sensible question.

Last week I posted the answer on Substack. You can read ‘To Gig or Not to Gig’ (it’s free!)

Yes, icons of global popular culture such as Mick Jagger, Beyoncé and Harry Styles are all gig workers.

And (believe it or not) gig work is even older than Mick Jagger! Wow! I wonder if Mick’s eight children—particularly his youngest child, six-year-old Deveraux—would realise that Mick’s a gig worker? They probably wouldn’t care…

But the ATO does care about who is a gig worker. And the Albanese government, under Minister Burke, wants to kill off gig. But we assume that it wouldn’t give PM Albanese any ‘Satisfaction’ to attack Jagger, and anyway ‘You Can’t Always Get What You Want’.

But the ATO is really looking at this as a Satellite issue (apologies to Mr Styles).

What the ATO is focused on is the type of gig work that’s done through platforms. No, not the ‘stage’ platforms that Mick, Beyoncé and Harry work on, but the ‘tech’ platforms that Uber and other such companies use to organise work. The ATO calls it the sharing economy.

What the ATO wants to do is track your income if you work as a ride-share driver, rent out your flat/house/room for short-term accommodation and so on. The ‘platform’ companies will be required to report your income to the ATO starting on 1 July 2023 (i.e., soon!) The platform companies will require information from you, notably your:

  • ABN and business/trading name (where applicable);
  • first, middle and surname/family name (for individuals);
  • date of birth (for individuals);
  • residential or business address;
  • email address and telephone numbers; and
  • bank account details.

But we suspect they’d have all this information anyway. The ATO has provided a detailed explanation here.

And just to ensure the message gets through, to steal a line from Beyoncé, these new gig reporting rules also apply to Single Ladies! (But presumably won’t apply if you’re still in nappies.)

Campaigning is under way—Defending your right to Be Your Own Boss

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campaigningWe thought we’d give you an understanding of the mechanics of our campaign to try and stop the Albanese government from implementing its ‘employee-like’ agenda.

We explained early in May that the government had started the implementation process with the release of the Department of Employment and Workplace Relations’ (DEWR) consultation paper.

Our first task was to assess and respond to the paper. We lodged our long submission (11,000 words) to DEWR and in late May provided you a brief overview. The reason for the long submission is simple. The government is throwing up a concept—‘employee-like’—which at first glance could appear reasonable. But it’s only when you delve into the detail of what this means that a full understanding is possible. And it means a direct attack upon your right to be your own boss, to be self-employed.

The next phase in our campaign started last week. This involves focusing on the independent Senators that the government needs to pass any legislation in the Senate. There are seven independent Senators. The government needs four of them to pass legislation.

Last week we began the engagement process with the Senators. It needs to be understood that all Senators and MPs are incredibly busy trying to comprehend a huge range of complex issues. Our responsibility is to present our arguments clearly, factually and as concisely as possible. To this end we’ve produced a four-page summary of our position.

Last week we had initial discussions with staff of some Senators and had one Senator ask us to come to Canberra to explain the issues in person. We did this and had a very productive discussion. It was pleasing to have this level of interest.

We’ve been conducting pro-self-employed advocacy campaigns for over 20 years and we’ve learnt one thing. It’s essential to sit down with Senators and MPs and explain one’s position face-to-face. We’re committed to this. And it’s not just independent Senators we seek to talk to, but also the government itself, the opposition and independent MPs.

This costs money, of course, and this is where your membership fees go.

For example, a one-day trip to Canberra (from Melbourne) usually involves:

  • $500 in airfares, $100 for buses, taxis, etc.

And staying overnight in Canberra (if needed) is expensive during Parliament sitting days—usually starting at around $250 a night (just for basic accommodation!!!)

The government plans to introduce its contentious legislation later this year. To run our advocacy campaign, we anticipate that around eight to ten trips to Canberra will be required before years’ end.

If you’d like to help fund any of those trips, you can do so through our dedicated campaign membership link here.

There’s quite a ‘battle’ going on, with the ACTU (unions) putting out a very aggressive ‘research’ paper which attacks the High Court and is hugely misleading on many fronts. It’s this sort of thing that we need to explain to Senators and MPs otherwise the union agenda will prevail.

We’ll keep you informed.

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.

Reporting from Marxism Conference 2023

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Marxism-conferenceWe’ve reported that the Albanese government has committed itself to upending our right as self-employed people to be self-employed. Its stated agenda is to create a third definition of self-employment called ‘employee-like.’ This will throw into confusion, perhaps even remove, key protections we have long campaigned to achieve—for example, protection from unfair contracts.

The government plans to move with legislation later in the year. We intend to mount a strong campaign against this and are preparing for the battle ahead. The government comes at its agenda from the perspective that there is an inherent conflict between ‘workers and bosses’. This is the old Left-wing perspective of the social and economic order.

The challenge posed by self-employed people to this perspective is that we are both worker and boss at the same time. So, do we exploit ourselves? Are we inherently in conflict with ourselves? Um … confusing!!

Over Easter, Australian Marxists held their Marxism Conference 2023 in Melbourne. Self-Employed Australia’s Executive Director Ken Phillips attended the full three days. His aim was to seek to understand what the Marxists’ arguments are and the world view that underpins them. If we are to effectively defend the right to be self-employed, we need to understand what the ‘other side’ are saying and thinking—even at the furthest end of the spectrum.

The Albanese government is broadly of a Left-wing persuasion. Prime Minister Albanese is from the socialist left of the Labor Party. We’re not offering a view on that, but rather seek to understand a range of political views. All political views fit somewhere along a spectrum of some sort. We don’t know where the PM sits on the Left-wing spectrum. We doubt that he is a hard-line Marxist as presented at the Easter Marxism Conference.

What we have done, however, is to put together some day-to-day reports on what we think it is that Australian Marxists believe. Here are the three reports we put together over Easter:

Reporting from the Marxist Front Line – Overview and agenda

  • Listing the agenda items.

Reporting from the Marxist Front Line – Day One

  • Capitalism is the enemy.
  • We are defined by our class.

Singing “the  Internationale”

  • On War and Identity Politics

We have genuinely attempted to present reports of what was said and what was argued. We’re not commentating on those claims. Rather, we’re simply trying to gain a broader understanding of the mind of the Marxist Left.

‘A Tale of 2 Croissants’ and Being a Little Bit Pregnant(?)

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substackI let you know a little while ago that I’ve started posting as a Substack writer. Substack is for obsessive writers (like me). I’ve called my Substack SELF-EMPLOYED AREN’T STUPID!

Substack gives me a platform to write about self-employed issues, ideas, concepts and thoughts that complement what we do at Self-Employed Australia.

So here are some thoughts that might interest you from SELF-EMPLOYED AREN’T STUPID!

A tale of 2 croissants

croissantsI explain that:

“In my home city of Melbourne there’s a near-inner-city suburb that’s rapidly changed from working-class to ‘woke-well-to-do’ class. At the outer edge of the suburb there’s one street that seems to divide the two classes. On the working-class side of the street is a popular bakery run by a Vietnamese family. Not quite half a kilometre away (in the woke-well-to-do section), is another bakery.

The Vietnamese bakery sells croissants for $4.00.

The woke-well-to-do bakery sells croissants for $6.50.”

Read more   

A serious look at being a ‘little bit pregnant’

surpriseThis article looks at the labour academic argument that self-employed people can be a ‘little bit an employee’.  I explain that:

For a long time, Australian unions, labour academics and their political fellow travellers have sought to cut away at the right of people to earn their income through the commercial contract. The Albanese government has committed to doing this later in 2023.

And explain the history and thinking around this idea.

Read more

Independence and the Death of Employment

bookYou may not be aware that I published a book on this in 2008. I’ve decided to make this available through Substack in serialised, chapter format. I’ll progressively release chapters. In this first release I provide the book’s Introduction. In it I quote Roman Emperor Caligula who stated:

“Bear in mind that I can treat anyone exactly as I please”.  That’s real power.

The modern employment contract is a contract of control and power, of one party over another. Few realise this. And much of my (obsessive) journey is to argue against such power and control.

As you are a subscriber to, or member of, Self-Employed Australia, you’ve become part of, or maybe are committed to, the campaign to defend self-employment—that is, escaping the control and power over you that comes with ‘employment’.

I invite you to subscribe to my Substack SELF-EMPLOYED AREN’T STUPID! blog and join me on the further development of this journey.

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.