Self Employed Australia

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“Everyone needs an Advocate”

'Insecure Work'

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 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.

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.

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.)