Self Employed Australia

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“Everyone needs an Advocate”

'Employee-like'

Trashing casuals’ incomes – The Loophole Bill

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casualsLast 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

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independent-senatorsHave 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.

small-business

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

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loopholeIn 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

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small-businessWe 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.

Make the gander do what the goose must do

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gander-gooseThe 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

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spaghetti-delayedWe 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.

A spaghetti bowl of complexity. The new IR Bill

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spaghetti-bowlLast Monday (4 September) I was in Parliament House, Canberra ‘walking the halls’, knocking on the doors of independent Senators and others. I was handing out an easy-to-read ‘package’ of information on our objections to the ‘employee-like’ laws proposed by the Albanese government. Here’s the handout package.

Around 3pm on Monday, Workplace Relations Minister Tony Burke presented to parliament the new IR law called ‘Closing the Loopholes’ Bill. It’s 280 pages long with a 521-page Explanatory Memorandum. It’s a highly complex Bill that wraps multiple industrial relations agendas into a massive piece of legislation. It’s a spaghetti bowl of legislative confusion.

The first thing to note is that this is NOT a law to close loopholes. It is a hugely radical agenda that will change the fundamentals of the Australian economy and how business people, particularly small business people, can operate. Further, it will impact the core of consumer and competition protections and law in Australia. This is a critical aspect that is not receiving any media commentary.

The impacts are so fundamental, far-reaching and complex that we’re not going to rush into our own commentary. First, we’re going to split the Bill into its many agendas so we can understand and address each ‘bit’. This is important because there seem to be many disguised sub-agendas that need to be identified. When we’ve done that, we’ll supply you with our assessments in what we hope will be a logical and digestible way.

Parliament sits next week then takes a four-week break. This gives us time to progressively give you our assessments without overloading you. We’ll be supplying these assessments to the Senators and MPs with whom we’re working. Parliamentary debate on the Bill will become intense in the sitting days 16–26 October.

It’s important to understand that these laws can fail if rejected in the Senate, but it requires nearly all independent Senators to decide to oppose the laws individually. And each independent Senator will form their own view on which aspects they oppose (if they do). We hope that our views and assessments will make sense.

Right to be your own Boss Petition

Don’t forget you can sign the petition to Defend Your Right to be Your Own Boss.

The petition is at this link (scroll down the  right-hand side).

Right to Be Your Own Boss – Sign the Petition

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petitionYour Right to Be Your Own Boss is under attack.

We are endorsing a campaign started by others to defend that right. Check out the Defend Your Rights website here.

We encourage you to sign the petition. (Scroll down on the right-hand side of the website.)

This is important. Please take five minutes to sign it and encourage others to do so.

An update on our campaigning (see our website page)

It appears that the legislation intended to deny you your right to Be Your Own Boss is likely to be presented to Parliament in the next two-week sitting (starting on 4 September).

We’ll be in Parliament House on 4 September, ‘walking the halls’ and knocking on Senators’ doors with updated information on our objections to these planned ‘rights’ denial laws.

A key part of our campaign is to seek to extend and strengthen self-employed, independent contractors’ existing rights and protections under commercial and competition law. A key part of this is the application of Unfair Contract law protections. These laws are receiving a major upgrade in November this year, with serious sanctions for breaches.

Here’s our briefing paper on the ‘beefed up’ unfair contract law protections.

What we think is (frankly) scandalous is that this law does not apply to government departments. That is, government departments can quite lawfully impose unfair contracts on small business people whereas the private sector cannot do this. Talk about a recipe to repeat Robodebt anytime a government department goes rogue!!!

But we have a simple fix involving a straightforward amendment to the Competition laws that would read as follows:

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.

Our briefing note explains the background.

This one-paragraph amendment to the Competition law would require government departments to comply with the Unfair Contract laws.

We’re starting our campaign promoting this legislative amendment to the independent Senators first.

There’s a simple principle here: Where government imposes obligations and responsibilities on the private sector, the same obligations and responsibilities should apply to the public sector.

In praise of self-employed people – Common sense needed

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Bruce-BillsonFederal parliament sits again for two weeks from Monday, 4 September. We’ll be back there ‘walking the halls’, knocking on the doors of parliamentarians, and ‘selling’ the good news about being self-employed—that is, of people like us who want the right to be our own boss.

The planned legislation to force self-employed people to be employees has not yet been released. We want the Senate to block this legislation. At this stage our advocacy is on concepts plus practical things to ‘protect’ self-employed people.

For example, we want government departments to be subject to the unfair contract laws. Yes, it’s staggering. The laws make it illegal for businesses to have unfair contracts, but it is perfectly legal for government departments to impose unfair contracts on people. Talk about hypocrisy! We are putting it to Senators that unfair contract laws should be extended to cover government departments.

In this aggressive political environment, with all the attacks on self-employed people, it’s super refreshing to read independent comments in praise of the self-employed. Bruce Billson is the Federal Small Business Commissioner. He’s published an opinion piece “Why it’s time to celebrate our hard-working self-employed”.

We’d really like to quote the entire article, but here’s a selection:

Self-employment already allows 1.6 million Australians to earn a reliable income while preserving autonomy and choice.

We need to understand and recognise the difference between self-employed Australians and vulnerable workers. Self-employed people are not vulnerable… there is a risk if we allow that misconception to grow – we will snuff out the flexibility that’s so valued and important to the success of self-employment.

We need to reaffirm the sound and long-standing legal distinction between ‘contracts of service’ and ‘contracts for services’… We already have rules to stamp out sham contractors…

…we must make sure we do not generate legal and compliance confusion by conflating commercial and competition matters with employment matters.

Let’s honour and value self-employed people and independent contractors for mapping out a livelihood that works for them…

Self-employed people make a valued contribution, complement the employer-employee workforce, add agility to the economy that increases productivity, delight customers and clients, and deserve to be celebrated – not strangled.

The Small Business Ombudsman is really just talking common sense. We hope that common sense will win the day over the foreshadowed small business ‘attack’ laws when they come into parliament.

And remember that if you have a small business issue (say a dispute), the Federal Small Business Ombudsman and the State Small Business Commissioners provide great, practical support services.

Here’s our four-page summary of why we oppose the proposed anti-self-employed laws, including the practical reforms we say are needed.

Working from Home is making us our own bosses!

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working-from-homeThe Work From Home (WFH) movement has been coming under attack. Office real estate valuations are crashing globally and ‘workers’ are to blame, it would seem.

But what is WFH? It’s nothing more than millions of workers taking advantage of technology that allows office work to be done anywhere, anytime. Effectively ‘we’ workers are acting like consumers and exercising our individual choices as to how we earn our incomes. In truth, we’re witnessing the crashing of market forces (millions of people making billions of individual choices) into the labour environment. To real estate moguls I say: ‘suck it up’ and adapt!

WHF goes further. It’s challenging the underpinnings of labour law and management, at least in the office setting. It is a moment in time, a revolution!

Even if you’re legally tagged an ‘employee’, in fact working from home takes on more of the features of self-employment (being your own boss) than employment. Progressively more and more WFH people will become formally self-employed.

I discuss this in greater length (in between putting on a load of washing – I work from home as a self-employed person!) on my Substack site. You can link here (it’s free).

But there’s another angle I don’t discuss on Substack—the gig economy. Quite often substantial aspects of WFH involve gig work. Think of WFH translators, transcriptionists and private tutors. They almost exclusively work from home, sourcing and managing their work through gig platforms. And they are almost universally self-employed. Yet the federal government’s agenda is to attack these people.

You’ll probably be well aware of our campaign to attempt to have this agenda blocked in the Australian Senate. The WFH movement adds further weight to our argument that the government’s agenda is nonsensical and defies the choices that workers (people) are making to have control of their own working lives. This is a ‘movement’ of individual choices by huge numbers of people.

Here’s the summary of our other reasons for opposing the government’s anti-gig, anti-worker agenda.

And a quick campaign update for you…

  • We’ve been in contact now with all of the seven independent Senators’ advisers. Discussions have been very professional and constructive. At this stage of advocacy our experience is that it’s necessary to engage with the Senators’ policy staffers.
  • There’s no legislation at the moment, but when it appears we’ll be doing further analysis and briefings.
  • We need the Opposition and six of the seven independent Senators to oppose any legislation in order to block it.
  • So far, we’ve conducted three trips to Canberra to meet Senators’ policy staffers in person. When the legislation appears, the pace of this will pick up. Phone calls, emails and Zoom chats have been frequent.

Touch base with me if you’re interested in more information.

Full campaign details here.