Self Employed Australia

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“Everyone needs an Advocate”

Work Safety

Outcome: Victorian Supreme Court Action

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supreme-courtThis is a special email to update you on the outcome of our mandamus application to the Victorian Supreme Court over WorkSafe Victoria’s failure to prosecute individuals and entities over the 2020 Hotel Quarantine disaster.

On 2 December 2022, we informed you of the Court’s ruling (delivered that day) which declared that we had not lodged our application ‘on time’. That is, our application was dismissed on a technicality. We disagree with and reject this decision.

For fuller details on the case:

  • This link is to the ruling of 2 December. We’ve highlighted some sections.
  • This link gives an overview of the 3-year campaign, plus some commentary on the ruling.
  • We have made available a full commentary on the ruling to SEA members.

Here’s a summary

Supreme Court rules require that lodgement needs to occur within 60 days of when the named government department failed to do what that department is required to do by law. The issue was: what was that date?

WorkSafe refused to answer whether they had investigated those named entities as required.  But the ruling states that, as of 29 September 2021, we should have inferred, concluded or assumed that WorkSafe had investigated all the 26 entities/individuals that we named (the Victorian Premier, etc). (Our application was lodged on 14 February 2022.)

We say that that conclusion is wrong and that we did not and could not have known. The Court’s ruling was based on interpreting drawn-out correspondence spanning many months about who said what to whom and what we should have inferred by what was said/written.

The ruling then does two curious things in our view.

  1. It spends considerable time rebutting many of our published allegations/assessments we made as to why individuals/entities should be prosecuted. Why bother to do that when the dismissal of our application on technical grounds was all that was needed? The ruling reads as a defence of the government individuals and entities we named.
  2. The ruling then says that if the court allow SEA’s application that this would put the individuals we named under ‘stress’ and this should not occur.

It seems that the Court is saying that an individual should not be prosecuted for alleged offences if the prosecution were to cause the individual ‘stress’. We ask: Would this principle apply to an accused murderer? That is, should an accused not be prosecuted because they would feel ‘stressed’? We find this a disturbing concept. We will have more to say on this issue.

SEA is committed to continuing our ‘Not Above the Law’ campaign, along with our other campaigns on public policy issues affecting self-employed people and more.

I’m available to chat should you want more information or explanation.

Ken Phillips
Executive Director, Self-Employed Australia
0412 393 692

 

Decision Supreme Court Victoria – Hotel Quarantine

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not-above-the-lawAt 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.

We seek prosecution of Victorian EPA and WorkSafe over chemical waste fire in 2019

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prosecution-chemical-fire-NATLOn 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:

  • prosecute the EPA; and
  • for WorkSafe Victoria to prosecute itself

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:

  • Knew that the Campbellfield facility had exceeded its legal limit for the storage of dangerous chemicals, thereby creating the fuel for the massive fire.
  • Allowed, sanctioned and ordered the storage of illegal quantities of dangerous chemicals at the facility.
  • Were complicit in ordering, allowing and supervising the transport of dangerous waste chemicals to the facility to the extent that the facility exceeded its legal licensed limit by a multiple of three.
  • The EPA ordered the Campbellfield facility to process the dangerous chemicals even though it issued a conflicting order to stop processing. It was this processing that directly caused the fire.

The evidence irrefutably establishes breaches of the OHS Act and demands the prosecution of the EPA and WorkSafe.

More information soon.

Why we do what we do. No-one should be above the law

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above-the-lawAs 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.

Government report: Don’t destroy self-employed gig workers. We agree

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report-gigDespite the Albanese government’s description of self-employed ‘gig’ work as a ‘cancer’, a recent government report (interim) says that such work and workers should not be ‘stymied’. We totally agree and have made a supporting submission.

The Productivity Commission is a high-powered federal government economic research think-tank. What it says is important.

In its (interim) report it studies and makes recommendations on the gig/platform economy. It says:

Regulation should evolve to meet the workplace relations challenge of innovative new business models, without stymying their potential contributions to productivity.

This is a heap of common sense. We hope the Albanese government takes note. Don’t throw the baby out with the bathwater!!

Our submission makes key points of fact.

There’s no confusion between an employee and a self-employed person:

  • An employee earns income through the employment contract.
  • A self-employed (independent contractor) person earns income through the commercial contract.

This legal fact is supported by research conducted by the International Labour Organisation and by international standards to which Australia is a signatory. Like the Productivity Commission, the ILO says:

National policy for protection of workers in an employment relationship should not interfere with true civil and commercial relationships…

We say that employment-structured firms are under competitive threat from gig/platforms and self-employed people. These firms are marshalling their well-entrenched political power to stop or limit the competition for power. This explains the ‘third way’ push which is on the Albanese government’s agenda.

The ‘third way’ push is highly dangerous. It has been rejected by the ILO and is causing great harm in the UK, for example. We explain this in our submission.

We also say that self-employed people are entitled to ‘protections’ but through commercial regulation not employment regulation. For example, protections are already available under laws covering unfair contracts, work safety, collective bargaining (under competition rules), minimum rates guarantees and dispute resolution.

But there is urgent need to reform the workers’ compensation schemes, for example, to allow individual self-employed people to register directly with the schemes without being forced into ‘employment’. Currently, self-employed people are banned from workers’ compensation, a glaring discrimination.

We explain these issues and more in our submission.

2021: A Victorian Health Department Space Odyssey – Where is Hal?

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space-odysseyTry this piece of strangeness. We now have ‘proof’ that the Victorian Department of Health makes decisions and does things without any apparent human involvement.

The Department, we assume, must operate like Hal in the great, classic sci-fi movie 2001: A Space Odyssey. Hal was the super computer that ran the spaceship without human involvement. Somewhere in the Health Department ‘Hal’ must exist.

The ‘proof’ of Hal is contained in a 4 October 2021 memo to executives in the Health Department. On 29 September 2021 the Victorian WorkSafe Authority announced it was prosecuting the Department of Health over the 2020 Hotel quarantine disaster which resulted in over 800 deaths. The 4 October memo states:

“WorkSafe have advised that no individuals from the department are, or will be, charged.”

Here’s what this means. WorkSafe has found sufficient evidence of breaches of work safety laws to start a criminal prosecution of Health. We updated you on this last week. In other words, the Department did or failed to do things that has resulted in criminal charges being laid. BUT. According to WorkSafe’s advice to Health, no humans committed any of the criminal things. The Department acted criminally but no human acted criminally. Go figure!

But see. We told you so. It’s Hal! And now like the children’s book ‘Where’s Wally?” we have to ask ‘Where’s Hal?’

Here are just some of the questions that must be asked:

  • How did WorkSafe conduct a criminal investigation without interviewing any humans?
  • Or did WorkSafe interview and question humans?
  • If WorkSafe did interview humans, did any of those humans explain how the Department does things without humans making decisions or doing those things?
  • Can humans in the Health Department explain how the Department operates without humans making decisions or doing things?
  • Did WorkSafe meet or see Hal?

Of course, these questions are all nonsense and just as nonsensical as WorkSafe only prosecuting Health but not individuals.

In truth a government department is just a bunch of humans making decisions and doing things. A ‘department’ does not and cannot act criminally. Only humans act criminally. There is no Hal in the Health Department. Only humans.

But WorkSafe is acting on a fantasy, a Space Odyssey.

This is not just an isolated Victorian issue. It cuts to the heart of whether government in Australia operates impartially so that no-one is above the law, including government itself. It’s no joke. It’s serious!

Here’s the Health memo obtained through FOI.

Note the 104-page Charge Sheet but with all important information blanked out!

Prosecution of Victorian Health over 2020 Hotel Quarantine Disaster—Update

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It’s been a little while since we updated you on the legal process of prosecuting the Victorian government over the 2020 Victorian Hotel Quarantine disaster that resulted in over 800 deaths. What’s at stake is whether governments hold themselves accountable to the same standards to which they hold the rest of us.

It’s quite clear that our Not Above the Law Campaign forced Victorian WorkSafe to prosecute the Department of Health. We have to ask the question: how genuine is that prosecution? We’re chasing this and here’s an update:

  • The prosecution of Health was announced on 29 September 2021 and involved the laying of 58 charges. Since then there has been NO, that’s ZERO, further information.
  • We decided to check things out. We went to the Melbourne Magistrates’ Court and were told that there was an online directions hearing on 26 May.  Members of the public could attend and we were told we’d receive an email link. The link arrived. We dutifully attended only to discover that we’d been sent the wrong link. Goodness—what an unfortunate mistake by someone!!!

SO

  • We tried to hunt down the case number. What an effort that was, given that the case name has not been made public from what we could discover. Victory! We discovered the name. It’s Victorian WorkSafe Authority v The Crown in the Right of the State of Victoria (Department of Health). Case number M12097325. If you want to follow the case, check the Magistrates’ Court website, choose the “Criminal List” button in the top left corner and put the case number in the appropriate box. Members of the public have a right to attend, but it seems you’ll need to ring the Magistrates Court to receive a link (assuming you’re sent the correct link) or else attend the hearing in person.
  • Next step is that we’ve applied to the Court for the release of all court documents. We’re after the charge sheet, summons, prosecution summary and so on. Lawyers tell us that in criminal cases (OHS charges are criminal) such documents are ordinarily public documents. But the release will be decided at the next hearing date, Friday 17 June at 10 am (a Committal Mention). It will be interesting to see if WorkSafe and Health both apply to keep the documents hidden from the public.

Justice is something that must be done and must be seen to be done! But, goodness, with the Health prosecution there seems to be a lot happening to keep it ‘unseen’. We’re chasing this up and will update you after the 17 June.

Closing the construction watchdog will harm self-employed tradies

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Unfair contract laws

In March we praised the Morrison government for moving to ‘beef up’ the unfair contract laws for small business people. Albanese’s Labor also supports this, which is great. Unfortunately, the Bill did not pass through Parliament before the election was called.

Integrity Commission – ATO

Labor has made a big noise about Morrison failing to establish a Federal Integrity (anti-corruption) Commission. Here’s our assessment of the issues and politics of this. Morrison has a model, but Labor wants one based on the NSW Commission. The NSW Commission is, however, accused of being a kangaroo court that the High Court found breached the law. The Morrison model would, for the first time, make the ATO accountable to an external body. That’s a policy we strongly support.

Industrial relations

Last week Morrison announced he would move on some industrial relations reform. Labor attacked and Morrison quickly reversed his stance. Here’s our assessment of the politics around this issue. Essentially, we say that the ‘big end of town’ wants changes to suit themselves. But we reckon that the ‘big end of towners’ are incompetent in managing their workplace relations.

Construction Industry Watchdog

If there’s one Labor commitment that stands out, it’s that an Albanese Labor government will close down the Australian Building and Construction Commission (ABCC).  We see this as highly negative for self-employed people in the construction sector. We strongly oppose this Labor policy.

Here’s our longer assessment, but in summary:

  • The ABCC has brought some discipline to the mafia-like behaviour of construction unions. Over the last two years the ABCC has had the courts impose fines totalling some $5.7 million for illegal (thuggish) behaviour.
  • What’s extremely important is that the ABCC operates a Security of Payments system in the construction sector. It’s a vital service. All construction firms within the ABCC’s jurisdiction are required to pay their subcontractors within payment terms. If they are late, they must report this to the ABCC. Subcontractors can lodge complaints with the ABCC over late payment.
    If contractors do not pay on time, they risk sanctions that ultimately include being banned from all Commonwealth-funded work. Over around the last 5 years the ABCC has recovered some $10.7 million in outstanding payments owed to subcontractors. Some major contractors have been disciplined.
    An external review of the ABCC reports a “reduction in the number of delayed payments” and “greater efforts being made to pay subcontractors on time.” This is critically important.

There’s no doubt that should Anthony Albanese’s Labor win the election, one of its highest priorities will be the elimination of the ABCC. The outcome would be renewed, unrestrained thuggery on construction sites. Further, small business tradie subcontractors would again carry the risk of not being paid. A bad outcome for all except for the thugs.

(Disclosure: Ken Phillips is a member of the ABCC Security of Payments Working Group along with representatives from the ACTU and Building Industry Associations.)

We’ll produce more election assessments on issues for self-employed people over the coming weeks.

ABC’s Dr Norman Swan says badly degraded Victorian Health capacity to blame

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norman-swanThe ABC’s Dr Norman Swan explains why Victoria did so badly with Covid in 2020. Watch his comments here (47sec): https://www.youtube.com/watch?v=x3h8mS-6VUM

Dr Swan says Victoria has

“… 88 different health services which don’t look after the population unlike most other states (the Victorian government)… long ago degraded … the public health capacity, and in 2009 they ran the white flag up … Dan Andrews was the Health Minister.”

This analysis by Dr Swan reinforces why we must proceed to push for the prosecution of the government and responsible individuals (Premier, etc.) over the 801 Hotel Quarantine deaths in 2020. If WorkSafe fails to do its job by prosecuting individuals, the degraded Victorian health system will continue to put people at risk. It’s unsafe.

Running parallel to Dr Swan’s comments is an analysis by a public administration academic who case studied the 2020 Hotel Quarantine program. His report Hiding in plain sight: Vulnerability, public administration, and the case of Covid-19 hotel quarantine sets out a table that shows all the actions and inactions of the government that led to the 801 deaths disaster. The paper says:

“The Covid-19 HQ Inquiry found that a series of actions and inactions surrounding decisions by politicians, practitioners, and policymakers with responsibilities for public administration portfolio areas gave rise to accidents which brought failures and subsequently a crisis into existence.”

“… the leadership and functional expertise at group as well as individual levels was unable to take meaningful action to ensure that the program was fit for purpose.”

However, the paper focuses exclusively on the notion that the disaster should be treated as a learning experience for public health administration. Some people might believe that no individuals need to be held to account to enable ‘learnings’ and change. Such a position would be plain wrong—even dangerous and unsafe in our view.

We see this attitude too often in public administration. The people who make the decisions (politicians and bureaucrats) are rarely held personally accountable for their decisions. The ‘blame’ is isolated and attached to the ‘system.’ But this is not the standard applied to business or the community. Small business people, in particular, are held personally accountable for every action they take. We say the public sector must be held to the same community standard.

This is why we say that Victorian WorkSafe is making things dangerously unsafe in only prosecuting the Department of Health and not the individuals who were the decision makers in the Hotel Quarantine disaster. Community standards of individual responsibility must be applied. No one is above the law.

More developments and news soon.

Xmas is here—Goodness. A quick update and Season’s Greetings!

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seasons's-greetingsSuddenly Xmas is upon us. What a year!  Season’s Greetings to all our members and followers! We wish you the very best for a ‘non-lockdown,’ ‘sudden rules change’ Xmas and holiday season.

Here’s a quick pre-Xmas update for you on our two main campaign activities.

Victorian Government OHS prosecution campaign

The fund-raising response has been outstanding. We’re looking solid in achieving our funding target for the legal campaign. We try and ring people to say thanks for contributions but the numbers have become a bit overwhelming. Please accept our thanks if we haven’t rung you.

The funding is so solid that we’ve started the process of spending serious money on lawyers. The full legal team had a long and highly productive Zoom conference early last week. Tasks have been allocated, research into the finer details of legal issues is occurring, and preparation of court papers has begun. We’ll keep you updated during January. I won’t go into the details at this stage.

We’ve had quite a few queries around the fact that WorkSafe is prosecuting the Victorian Health Department and what this means. I’ve prepared another short video explaining that the prosecution of Health doesn’t change the fact that individuals also need to be investigated with a view to prosecution.

Here’s the YouTube video:

NATL

Reform of the Australian Taxation Office

Our decade-long campaign to reform the ATO rules governing how it is required to treat small businesses continues. Yes, we’ve been on this case for 10 years. Yes, we are persistent.

Here’s the ABC coverage of what we’re seeking:

Helen

You’ll be pleased to hear that we are in discussions with the ATO on our Taxpayers Rights Agenda based on the USA model for regulating the IRS. The ATO is showing genuine interest and seems to want to understand. That’s good. We’ll continue the discussions.

Other major issues

  • The new Federal ‘pay on time’ laws are now in full implementation. This is hugely important for small business people and a great Xmas present. We’ll provide some updates in the New Year.
  • The beefing up of Unfair Contract laws is slower than we’d like. The new Federal Bill has across-the-board support but seems to be caught up in an overloaded Parliamentary backlog of Bills. We hope it proceeds before the next Federal election. We’ll certainly push for this.

So again. Season’s Greetings to everyone. Let’s all trust that planned holidays, long overdue family gatherings and some well-deserved relaxation occurs without Covid-reactive government interference.