"Everyone needs an Advocate"
At 10 am this morning His Honour handed down his decision on our application related to the 2020 Hotel Quarantine Program and the 801 deaths.
His Honour ruled that our application for a writ of mandamus (that would have required WorkSafe investigate the individuals and entities we named) was not submitted within the 60 days required under Supreme Court rules. Therefore our application was dismissed.
We will supply more information soon.
In late October this year the Victorian Labor Government announced new gig laws it intends to introduce. The promised laws have all the nice-sounding language of ‘rights’ for gig self-employed people, but in fact the laws amount to a stripping of rights.
We’ve seen this sort of cunning stuff before. In California, in 2020, new laws came into effect that outlawed the use of self-employed people. That is, the structure of the laws didn’t ban people being their own boss. But by making it illegal to use self-employed people, California destroyed the incomes of people who worked as their own boss.
The promised Victorian Labor laws would perform a similar underhand trick. Effectively the laws would impose huge union control and centralised regulation over gig platforms, thereby destroying their business models. The platforms would become unprofitable and be forced to leave Victoria.
This is why Deliveroo recently closed in Australia. They’d done deals with unions that made their business unviable. Close down was the answer!
And who suffers? Yep, you got it. It’s the thousands of self-employed people—try students, retirees and the rest—who use gig platforms to top up their income. Only 0.19 percent of gig workers use gig for their full-time work. Everyone else uses gig for income top-up.
The promised Victorian Labor law is a business destroyer. It’s a policy that says that Labor despises people who work as their own boss, working when they want to work. It’s a policy of hate toward small business people.
We saw this before in Victoria when, around 2017, the Victorian Labor Government forced the breaking of the contracts of hundreds of self-employed cleaners who had direct contracts to clean schools. Labor forced these ‘own boss’ cleaners out of business and handed the contracts to big business. Cleaners were forced to become union members or have no work.
The promised Victorian Labor gig destruction laws would:
And more.
In effect, self-employed gig people would retain their theoretical ‘right’ to be self-employed. But gig work and income would simply disappear. This is a Labor policy that attacks the ability of low-income people to find income through being their own boss. It’s pretty disgusting!
This commentary should in no way be construed or taken as an endorsement (or otherwise) of any political candidate or party or as a suggestion as to how anyone should vote or not vote at the 26 November Victorian state election.
On 5 April 2019 a chemical storage and processing warehouse in the north-western suburb of Campbellfield in Melbourne erupted into flames. The fire was a toxic inferno that took several days to fully extinguish.
Evidence now available is that the fire was a direct result of the conduct of the Worksafe Authority of Victoria and the Environment Protection Authority of Victoria (EPA). This EPA/WorkSafe conduct put at critical risk the health and safety of workers, firefighters, other emergency response personnel and community members. Warehouse employees and firefighters were injured.
Self-Employed Australia has issued Section 131 notices (under the Occupational Health and Safety Act of Victoria) to the WorkSafe Authority of Victoria requiring WorkSafe to:
for breaches of the Occupational Health and Safety Act (Vic) in relation to the fire.
Today we publish on our website the evidence warranting the prosecutions. The evidence is sourced from court documents that have only recently become publicly available.
You will find here:
plus two critical documents, namely:
Now that we have issued the Section 131 Notices, WorkSafe has legal obligations to investigate with a view to prosecuting. It is for the courts to decide if WorkSafe and/or the EPA are guilty.
The evidence is unequivocal, however, that both WorkSafe and/or the EPA:
The evidence irrefutably establishes breaches of the OHS Act and demands the prosecution of the EPA and WorkSafe.
More information soon.
As I was leaving the court at the close of our most recent Victorian Supreme Court hearing on 4 October over the 2020 Hotel Quarantine debacle, I was asked by a journalist, “why do you do what you do?”
The journalist was observing that, in taking on WorkSafe Victoria, we are taking on the might of the Victorian government. Further, there is no personal gain to be had for anyone at Self-Employed Australia in doing this. In fact, some would argue that in doing so, there may be all sorts of personal risks. And the court action consumes substantial resources with frequently very stressful work. The journalist was curious as to our motivation.
The answer is simple. In an (allegedly) democratic country constrained by the rule of law, no-one is or should be above the law. We are fighting, as best we can, to have that principle of democracy applied in practice. Democracy and the rule of law should not simply apply on election days, but be the living experience, every day, that guides our communities.
It’s like this. Governments make rules that apply to everyone. But far too frequently government excludes itself from those same rules. This happens when legislation specifically removes government from the reach of the law. It also happens when government institutions which regulate and enforce the law fail to, or (worse) refuse to, apply the laws in order to protect themselves or others.
Perhaps one of the greatest historical and enduring battles of human organisational effort is to decide the proper role of government. There are perhaps two broad aspects to the battle.
Some assume that government (by its nature) is always good, always pure and should reign supreme. Further that private enterprise is always evil because of the profit motive. (Yes, this simplistic view was passionately put quite recently in an online consultation I attended with a large government-funded think-tank!)
The counter-argument often put is that government is the source of oppression and must be constrained, reduced and curtailed.
The truth I think, is sandwiched between the two views. There is nothing holy or sacred about either government or private-sector operations. There is just the reality of human behaviour in which both the best and worst of human instincts play out against each other.
The resolution of this problem must be that we have laws that apply equally to everyone. The practices of transparency and accountability must be embedded in law and apply whether individuals work in government or the private sector.
Too frequently, however, government writes itself out of the rules that are written for everyone else, most notably the private sector.
Take this example. This Wednesday past (9 November) beefed-up laws giving protections from unfair contracts came into effect. That’s fabulous. But get this: The laws don’t apply to government departments. So a government department can, for example, engage an IT contractor but impose an unfair contract upon them. A bank cannot do the same thing. The hypocrisy is monumental. It debases the rule of law.
Another example. The ATO recently took submissions reviewing its policy for how it treats taxpayers. But these rules don’t have the force of law. Hypocrisy again. In our submission we challenged the ATO to seek to have parliament pass legislation to enshrine the fair treatment of taxpayers in law.
Our campaign to have the Victorian WorkSafe Authority prosecute individuals and government departments for OHS breaches over the 2020 hotel quarantine debacle, is a campaign for the rule of law. No-one should be above the law. (In case you’ve been following this matter, we’re still waiting for the court ruling.)
Ensuring that these simple principles of transparency and accountability apply equally to everyone is what motivates us. After all, self-employed people are always held accountable for what they do. Perhaps this is why we’re so passionate about equality of accountability.
We’ll have more news soon.
We’re challenging the Australian Taxation Office to enshrine fair treatment of taxpayers in legislation. It’s a major campaign priority for us.
Far too often we see self-employed, small business people in particular being treated badly by the ATO. The ATO has an internal policy that’s supposed to ensure that all taxpayers are treated fairly by ATO officers. The policy is stated in its Taxpayers’ Charter. The ATO is currently reviewing this policy. We’ve made a submission.
Most ATO officers behave fairly. There are some rogue ATO officers and there’s occasional incompetence. Taxpayers deserve legislated protection from rogues and incompetence. That’s fair. That’s justice.
We’ve said in our submission:
The Taxpayers’ Charter is an ATO ‘feel good’ statement of well-meaning intent as to how the ATO will or does treat taxpayers. It does not do anything to create a legislative obligation upon the ATO to treat taxpayers with any measure of fairness.
If the ATO were genuine and serious about ensuring that taxpayers were treated fairly and required to be treated fairly, the ATO would encourage and support a legislated Taxpayers’ Charter. Such legislation would impose sanctions against the ATO and ATO officers for breaches of the Charter. We recommend that the ATO support such legislation.
On a straightforward reading of the ‘Taxpayers’ Charter – essentials’ there is nothing in the wording of the Charter itself that triggers the need for compliance by the ATO if the Charter is breached by the ATO.
Our analysis of tax administrative laws is that any supposed taxpayer ‘rights’ are scattered through complex different legislative Acts that require expensive and specialised legal advice to comprehend, let alone apply. The upshot is that few people outside the ATO know or understand the rules and what the ATO lawfully can and cannot do in administrative terms.
We compare this with the USA, where taxpayers have rights to fair treatment in legislation. The USA tax office (IRS) must comply with these fair treatment laws.
In comparison, the ATO Taxpayers’ Charter is only a public relations exercise. We’re calling on the ATO to support taxpayer fairness in legislation.
Our submission to the ATO is here. It’s not too long a read and sets out:
We’ve been running this campaign for over a decade now and will continue to do so.
If you’ve ever been to a pub gig, you’ll have taken part in what the Albanese government wants to (effectively) close down. The Albanese agenda is starkly clear after Workplace Relations Minister Tony Burke declared the ‘gig economy’ is a ‘cancer’.
Here’s a simple example of why we strongly oppose the Albanese/Burke agenda.
The gig economy is not something new. The Stones, Cold Chisel, AC/DC all did and/or do ‘gigs’. Gig is the contractual lifeblood of the entertainment industry locally and globally.
A gig is pretty simple. There’s a contract for a set price to do something. “Come to my pub. Play for three hours and I’ll pay you a thousand bucks”, says the pub manager. “Done”, says the singer. The singing done and the money paid. End of contract.
Somehow, for the Albanese government this is a ‘cancer’.
However, this familiar entertainment industry ‘gig’ model has taken new forms. Now gig work is available for ride-share, food delivery, aged and disability care, and odd jobs. The list goes on. And, yes, the entertainment industry has gig platforms. Gigsmash is but one.
What’s happened is that online technology has made gig work secure. Gig platforms enable anyone wanting to do a job to connect with someone needing a job done. The revolution is that job specifics and price are upfront and agreed by the parties. The gig platforms also make the payments and enable both the ‘doer’ and the ‘receiver’ of the service to rate each other.
It’s fantastic. The risk of not being paid is massively reduced. Think of how many times a pub manager has failed to pay the full amount agreed, screwing over the worker (singer)? It’s the security of payment and security and clarity of the gig work agreement that’s made this expansion of gig work so seemingly popular. And it’s all happened without government sticking its nose in!
But Minister Burke has promised to create laws that will require gig workers to have holiday pay as one eample.
So the pub manager will have to pay holiday pay on top of the $1,000 agreed. How is this to be calculated? Holiday pay is for full-time employees who’ve worked a full year. How is this to be calculated for 3 hours work and no more? Ouch! That has heads scratching! But let’s say it’s $10. It’s clear what will happen. The pub manager will only agree to $990 for the gig. $10 will have to be held back.
But when does the gig singer get the $10? Does the singer determine when it’s ‘holiday’ time or does the pub manager decide? Sounds like a recipe for scamming! So will Albanese/Burke then set up a massive new government-run department to manage gig workers’ holiday pay? Will the singer need to apply to the government for the $10?
But there’s more. Around 830,000 Australians do gig platform work in any year. But only 22,000 use gig for their full-time work. In other words, around 810,000 Australians (about 7 per cent of the workforce) only use gig work as part-time top-up work. How is gig holiday pay to be calculated for all these part-timers?
Whatever Albanese/Burke do, it’s destined to be a mess. The proposal/promise is illogical. It doesn’t fit the reality of how people work. It’s dumb. Its dangerous. It will do much harm.
We will keep arguing against this.
We’ve been campaigning for more than a decade for major reform to how the ATO treats self-employed small business people. And since 2000 we’ve studied how the UK tax authority (HMRC) treats the UK’s self-employed. Both the ATO and HMRC seem to have been trained at the same bureaucrats’ ‘bully school’. Both defile the ideas and practices of justice and fairness.
But late last week, the new Truss government took a giant leap by repealing tax administration laws that HMRC has been using to bludgeon the UK’s self-employed. The Albanese government should take note.
What drove the UK repeal was a realisation that the UK laws were doing major harm to the UK’s economy. But more, the issue was cancerous for the Conservative Party’s political future.
The UK issue goes back to 2000. The UK tax authority, His Majesty’s Revenue and Customs (HMRC), views all self-employed people as tax dodgers. In 2000, laws were introduced (called ‘IR35’) which enabled HMRC to declare self-employed people to be employees. The trouble is that, invariably, when the courts looked at HMRC’s declarations, HMRC lost. But they kept destroying small businesses.
In 2017 HMRC shifted tactics. Instead of directly attacking self-employed people, additional new rules, called ‘Off Payroll’, required the engaging business to be responsible for deciding if a person was self-employed or an employee.
In 2021 HMRC applied the new Off Payroll rules to the private sector. This is where disaster struck (again). Third-party operators had evolved since 2017 who claimed that they could manage the Off Payroll rules. The public sector, followed by the private sector, forced self-employed contractors to work through these third-party operators. But far too many of these operators ran their own tax-dodging schemes, stole from contractors, and operated outside the UK to avoid UK laws.
In August 2022 the London School of Economics reported that UK self-employed numbers were down by 500,000, and dropping. It said, “The economy is not going to recover until we start treating them (self-employed people) better.”
This message about economic reality was delivered shortly after Boris Johnson had resigned as PM, but it was already resonating throughout the UK. Rishi Sunak was Johnson’s Chancellor. He introduced Off Payroll to the private sector in 2021. When Sunak made his pitch to become Conservative Party leader he was hammered on social media for his trashing of the self-employed. Liz Truss promised to do something about IR35. Truss won the leadership.
What has caught everyone by surprise is that the new Chancellor’s announcement last week is a complete destruction of Off Payroll. This is a massive embarrassment for HMRC but shows the extent to which the Truss government is seeking a total reset. Dumping Off Payroll is a headline part of a substantial package of UK business encouragement reforms aimed primarily at easing regulatory complexity.
What has all this to do with Australia? Business regulation complexity and bureaucratic stupidity grinds down economic growth. The UK’s HMRC has been doing huge harm to the base of the UK economy, self-employed people. The ATO is doing the same in Australia. At some point we need a government that will seek a fix.
It’s about collecting tax within a framework of legislated fairness and justice. Here’s our model for a solution. (YouTube)
I’ve been in London over the last week-and-a-bit. We (SEA) have a long association with several UK self-employed associations and have been working with them on common issues to defend self-employed people. Hence the London presence.
The two big issues are:
After many months of planning we were lined up for meetings/presentations with UK MPs in Westminster. These meetings were to discuss how HMRC could be reformed along the lines that we’re campaigning on for reform of the ATO. That is, using the USA laws covering the IRS as a template. However, the passing of the Queen and her funeral have meant that all these meetings were cancelled. Once the Royal transition is complete and the UK Parliament starts operating again, we’ll be working with our partners to re-initiate the campaign.
Our aim is to see if we can get a common movement in UK and Australia for reform of the HMRC and ATO. The treatment of self-employed people by both administrations is terrible, and their intimidatory behaviours share similar features. With a joint campaign effort we may increase our chances of achieving fairness for self-employed people.
We did, however, go ahead with a planned workshop session on self-employed status and ‘rights’. Included in this workshop were like-minded friends from the USA. This issue is ‘hot’ in the UK and USA (think California outlawing self-employment). Even though the media were present, we’ve recorded the workshop and presentation and will also release this once the Royal transition is complete. This issue has great importance for the UK, the USA and Australia. In Australia the Albanese government is committed to ‘smashing’ the self-employed. And the Albanese government, we predict, is likely to replicate very confusing UK ‘little bit pregnant’ laws to achieve its aims.
We’ll have a lot more to say about this and to explain the issues over the coming weeks/months. But at this stage we’re putting together a UK/USA/Oz ‘team’ to focus on the common themes to defend the right of people to be self-employed. We’ve gotta be organised!
More soon.
Workplace Relations Minister Tony Burke recently called gig work a ‘cancer’. Give us a break! What a ridiculous overstatement.
Let’s get real. Only 0.19 per cent of workers earn their full-time income through gig platforms. Yes, 0.19 per cent! That’s it. But, on the back of this cancerous depiction of gig work, the Albanese government intends to clamp down on it.
People who do gig work are, by definition, self-employed. Attacking gig means attacking self-employed people. Burke’s comment is insulting to self-employed people.
But if we’re going to apply such politically emotive language to policy analysis, where’s the real ‘cancer’?
Take the aged care sector. This is one sector Minister Burke identified as having a (cancer) problem.
The 2020–21 Royal Commission into Aged Care exposed abusive treatment of people in aged care. It was and is a massive scandal. The Royal Commission recommended that self-employed people and gig work be banned from aged care.
However, the Royal Commission offered no evidence as to why self-employment/gig should be outlawed. Was it because self-employed people abused elderly people? The Commission was silent. The fact is, however, that 96 per cent of people working in aged care are direct employees of aged care providers. Surely this overwhelming percentage would suggest that the problem lies in employment, not with self-employment/gig.
Facts speak louder than assumptions.
Care workers in aged care are on rock-bottom low wages. This leads to high worker turnover and lower quality care. Low pay rates occur because the award minimum pay rates, in practice, are the maximum being paid.
But the evidence is that the 4 per cent of workers in aged care who are self-employed are routinely paid more than employees. This evidence, which is accepted as valid, comes from Mable the largest gig platform operating in aged care. The higher rates occur because the self-employed workers are free to negotiate their remuneration directly with the people they care for. This doesn’t happen with employees.
The Commonwealth funds aged care. But there’s evidence to suggest much of that money disappears into a black hole. Look at these facts.
Funding for the top level in-home care is around $114 per hour. Aged care ‘providers’ are overwhelmingly not-for-profit charities and manage the money. They pay their ‘employed’ award workers roughly $32 an hour (casual). Add workers’ compensation premiums and so on and the cost is $35 an hour. The providers routinely charge another 32 per cent ($36 an hour) for their services of assessing and monitoring need, and organising workers.
There’s a gap, therefore, of $43 an hour of unexplained and unaccounted Commonwealth funding. What’s going on?
This month, media leaks from a yet-to-be-released Health Department report state that 9-in-10 in-home care providers don’t meet minimum government price transparency requirements. Some 275,000 older Australians receiving government-funded home care can lose up to 60 per cent of their allocated money in provider fees.
This ‘disappearing’ money is being spent on “excluded items” such as holidays, TVs, renovations and more. Maybe a good portion of this expenditure is justified? But is this where $43 an hour goes?
What is obvious is that the front-line employees doing the care are paid rubbish. Surely within existing funding budgets there is ample room to pay workers more. There’s a lot of fat in the system. Self-employed gig workers individually can and do negotiate higher remuneration. This doesn’t happen with employees.
What really emerges is that it’s the employed 96 per cent of workers in aged care who are being exploited by the ‘employment’ system.
The ‘cancer’ in aged care looks much more like the result of employment management systems than the outcome of gig platforms. In fact, gig-organised self-employment could well be the answer to a sick aged care system.
The Albanese government should take off its ‘cancer’ blinkers. Gig and self-employment offer real solutions, not problems.
Get ready for a profound disruption to some core big business operations in Australia. And this is great for small business people, consumers and (believe it or not) big business as well.
The Albanese government has committed to introducing new unfair contract legislation in the current parliamentary sitting period. Labor promised this in 2019—a pledge we totally endorsed. We again strongly endorse this move by Labor.
We campaigned for seven years for the unfair contract laws for small business and achieved these in 2016. But the laws have proven to be too weak.
Australia’s unfair contract laws are arguably the world’s first (and in global terms possibly the only) laws that have addressed the issue of bad standard form contracts in a holistic way. The laws were introduced for consumers in 2010 and extended to small businesses in 2016. Insurance products were included in 2021.
Some lawyers say unfair contract laws are wrong because they override the principle that a contract once entered into is set in concrete, even if it disadvantages one party. This is a perverted view of contract. The Australian unfair contract laws effectively codify in statute the elements under common law that make a commercial contract a proper contract.
As examples, unfair contract laws hold that if a standard form contract enables one party but not the other to unilaterally change the price of a contract, or cancel a contract or change its terms, then the contract is ‘unfair’.
The Australian Consumer and Competition Commission has been responsible for enforcing the unfair contract laws. Since 2016, the ACCC, with then chair Rod Sims at the helm, has consistently expressed frustration at big business ignoring the laws.
Until now, unfair contract terms could only be ‘voided’. There were no penalties for their use. Unfair contracts could only be sanctioned after they had done harm. This enabled ‘let’s screw people over’ big businesses to laugh off the laws.
To his credit, Rod Sims led the charge for a ‘beefing up’ of the laws. A ‘beefed up’ Bill was presented to Parliament earlier this year. It is this Bill that the Albanese government has as a template for making unfair contracts ‘illegal’.
If Albanese implements the template Bill, unfair contracts will be illegal with civil penalties of up to $100,000 for individuals and $10 million for corporations. A court will be able to make an order if it thinks there might be a loss. In other words, harm can be prevented before it occurs. Other provisions give real bite to enforcement.
Further, the current $300,000 threshold for the size of a contract subject to the laws is being removed. The size of a small business is being lifted from 20 to 100 employees.
On any assessment this is a major economic reform. It will protect consumers. But just as importantly, small businesses will discover a new level of equality of power with big businesses as both buyers and sellers of goods and services. Australia’s 1.3 million self-employed sole traders will have protections from bullying clients that they have never had before.
It’s a huge step forward.