Self Employed Australia

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“Everyone needs an Advocate”

Covid-19

NSW gives green light for business-mandated vaccinations. It’s ‘Safe’

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vaccination-tickYou might recall that on 13 August we wrote to all work safety authorities asking them to make clear statements as to where they stood on business-mandated vaccinations for staff. Here’s our letter.

It’s essential that authorities with the power to prosecute business under work safety laws tell business people how to comply with the law.

Three days ago (1 September) we received a clear, short reply from SafeWork NSW. The key sentence reads:

“SafeWork NSW considers vaccination a high order risk control measure against disease.”  Here’s the SafeWork NSW letter.

We have checked with our lawyers.

SafeWork NSW is saying that if a business/organisation does not mandate Covid vaccinations, the business is at risk of breaching OHS (work safety) laws. That is, the business would be failing to use a high order health strategy to provide workers (and others) with a safe workplace.

We congratulate SafeWork NSW for its statement. People will legitimately have different views on mandated vaccinations. Our point is that the work safety authorities have an obligation—both moral and in terms of governance—not to leave business as the meat in the sandwich over statute interpretation. In the mandated vaccination debate, we say that OHS law is the top priority over other laws such as industrial relations. Every business has a legal OHS obligation not to put people at risk. SafeWork NSW has made a clear statement on that obligation.

This is highly important for small business people. Big business can use armies of lawyers to advise them. Small business people only have themselves. SafeWork NSW has done the right thing by the people of NSW.

The NSW letter also then lays out a checklist for businesses to assess if workers don’t have to be vaccinated. This includes (1) eligibility for the vaccine, (2) personal health, (3) medical history, (4) type of work, (5) the risk of exposure, and (6) the availability of alternative control measures.

In relation to unfair dismissal, it would seem probable that the NSW statement should arguably be a high order defence against an unfair dismissal action. It will be interesting to see how ambulance-chasing lawyers and unfair dismissal tribunals respond to this.

Tasmania is the only other state to reply to our letter of 13 August. It put the responsibility back on to the business. The other states have been silent. Yesterday we wrote to all the other state authorities with a copy of the NSW letter. We have asked the other states if they agree with NSW. All state work safety authorities have a responsibility to the community to make their position on mandated vaccinations totally clear.

Victorian WorkSafe still refusing to comply with its legal obligations

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worksafe-failIt’s been eight weeks since the Victorian WorkSafe Authority failed to send to the Director of Public Prosecutions (DPP) its investigation into the 2020 hotel quarantine disaster that led to 801 deaths. Every day it fails to do this is another day in which it is giving the big finger to the legal requirement it faces. We explained this 2 weeks ago.

It’s now 540 days since the quarantine disaster, 450 days since WorkSafe says it started the investigation and 330 days since we triggered the Act forcing WorkSafe to investigate.

Compare this to similar triggers for investigations made to WorkSafe in 2019-20. According to WorkSafe’s annual report, it had 11 requests that year and started all investigations within 9 days. The longest time to complete an investigation was 201 days.

The failure of WorkSafe in this current case is obvious and raises suspicion. What’s going on? I explained this and raised questions on national Italian radio last week. Listen here. (It’s in English.)

And talk about double standards. Look at this case. A hyperbaric company has been fined $726,750 over the death of a disabled patient. The company and director were found guilty of breaching section 26 of the Act (Duties of persons who manage or control workplaces). This is exactly one of the provisions that we alleged has been breached multiple times by the government in the hotel quarantine mess.

WorkSafe’s Acting Director Health and Safety said this of the case: “If you are running a business in Victoria, you have a responsibility to ensure the health and safety of not only your workers but also members of the public …” We say ‘Yes’ to this. Is WorkSafe going to apply this standard to the Victorian government? So far, ‘No’ is the answer!

The Acting Director also said “WorkSafe will not hesitate to take action against employers who put people’s lives in danger by not having basic safety procedures in place.”  Well, we ask for that standard to be applied to the Victorian government. So far, all we see from WorkSafe is not just ‘hesitation’ but outright refusal to comply with its legal obligations.

Yesterday we again wrote to WorkSafe asking it to act as the law requires it to act. Here’s our letter. Here’s our Case for the Prosecution document.

To jab or not to jab—That is the work safety question!

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vaccination There are demands of Australian politicians to show leadership and create clarity about whether businesses must require workers to be vaccinated.

Governments are locking us up and denying us freedoms in the name of health and safety. But when it comes to businesses (small and large) and vaccinations, the law is an ass.

It doesn’t matter what a businessperson does. If businesses require vaccinations, they can be in breach of employment, privacy, discrimination and other laws. If they don’t require vaccinations, they arguably put their staff and others at risk and breach work safety laws.

I can just see money-grabbing, mongrel, ambulance-chasing lawyers falling over themselves to sue businesses. And unions will gleefully join in. Politicians will say ‘nothing to do with us!’

It’s a dereliction of their duty to all Australians for our governments (state and federal) to walk away from their responsibilities in this area. It’s weak, insipid government which, in this crisis, makes the crisis worse!

But politicians only make laws. It’s the bureaucrats in the enforcement authorities that apply the law. The rapid spread of Covid-19 means laws cannot be changed fast enough. The enforcement authorities have the power and responsibility to make statements of legal clarity. They can do this now!

Yesterday the Fair Work Ombudsman released a statement of advice but says that businesses should “get their own legal advice”. Pardon me if I label this statement ‘bull manure’.

That’s why today we have written to all the WorkSafe authorities in every government saying they should urgently issue statements as to whether they will prosecute or not over failure of businesses and other organisations to require vaccinations.

There are three simple questions

  1. If a business requires workers to be vaccinated, will the business have satisfied its work safety obligations?
  2. If a business does not require workers to be vaccinated, will the business have breached work safety laws and risk prosecution?
  3. If a worker is not vaccinated and attends work, will the worker have breached work safety laws and risk prosecution?

Here’s our letter to the Worksafe authorities.

My sense is that they will seek to squirm out of their responsibility and stay silent, but I’d be delighted to be proven wrong.

No-one should be above the law. But politicians and bureaucrats routinely put themselves outside and beyond the law. This is bad government in normal times, made worse in a crisis. The Australian community deserves better.

Is WorkSafe Victoria grossly incompetent or is something else going on?

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801-deathsToday, 29 June 2021, Victorian WorkSafe finally replied to us as to whether it is prosecuting the Victorian Government over the hotel quarantine deaths scandal.

Its reply? ‘We need more time!’

Here’s its letter.

It’s a shocker! Talk about bureaucratic ‘we’re doing a good job but it’s complex’ spin!

Let’s look at the facts:

  • It’s now 15 months since the hotel quarantine (deaths) program started.
  • It’s some 12 months since WorkSafe claim it started investigating.
  • It’s 9 months since we wrote to WorkSafe triggering provisions in the Work Safety Act requiring it to investigate. (Here’s our September 2020 ‘trigger’ letter.)

We’re dealing with the largest mass deaths in Victoria’s history from one event. WorkSafe’s performance on this displays gross incompetence at minimum. Or is this a cover-up? Is WorkSafe manoeuvring to protect people?

Consider this! WorkSafe has admitted that a prosecution must be brought within 2 years. Therefore if WorkSafe delays, can it claim the 2 years is up in March next year? Then no prosecution occurs? Can WorkSafe kill off justice by simply doing nothing?

Why did it take WorkSafe 3–4 months even to start an investigation? Incompetence or something else?

We’re not waiting. WorkSafe was required at law to reply to us today. It seems to do only what it is forced to do.

We’ve replied to WorkSafe today, triggering additional requirements under the Work Safety laws for WorkSafe to refer its investigation to the Director of Public Prosecutions (DPP).
Here’s our letter.

The DPP then must review WorkSafe’s investigation files and recommend whether WorkSafe prosecute. Now will the DPP step up to the job? The clock is ticking.

This is the most critical test that the work safety and justice system in Victoria has ever faced. Are these authorities putting some people above the law? No-one should be above the law!

WorkSafe is failing this test. What will the DPP do?

This is about justice for the 801 people who died, their families, friends and the people of Victoria. It’s about the integrity of the work safety and justice system in Victoria.

We’re not going to let go. We’re not going to be conned by the tripe, spin and ‘nothing to see here’ approach of WorkSafe Victoria. This campaign has only just begun!

Prosecution of the Victorian government – Update

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With the fourth Covid lockdown in Victoria we’re being consistently asked where we are at with our campaign to prosecute the Victorian government over the quarantine OHS breaches.

Quite simply we are currently in a holding pattern. WorkSafe Victoria must reply to our original 29 September 2020 letter by 29 June this year. That’s WorkSafe’s deadline.

WorkSafe must have initiated prosecutions by 29 June or explain to us in detail why not. They must do that on each of the 142 breaches of the Act we have alleged. If WorkSafe do not prosecute, we can and will trigger steps requiring referral to the Director of Public Prosecutions. This is explained in our letter to WorkSafe of today.

In addition, we’ve done an analysis of why Victoria is in trouble.

It’s quite startling to realise that, even before this lockdown, Victorians have suffered some 160 days in lockdown over about the last 450 days. That’s 35 per cent of days spent in lockdown since March last year. 801 of the 910 tragic Covid deaths across Australia (88 per cent) have been in Victoria.

We say that the sad fact is that Victoria has become a corrupt state where the normal processes of a professional public service have been rorted. Melbourne, in particular, is run by a new ‘Establishment’.

It’s a corrupt money-making rort where corrupt tendering processes have infected even the Health Department. What was witnessed in the hotel quarantine program was the neutering of professional public servants. This resulted in a near-complete breakdown in control systems, accountability and transparency.

On current evidence, the mess being made of Covid management in Victoria is set to continue. At the core of the reason for this is the refusal of the Victorian government to confront its problems. The Victorian WorkSafe Authority has the power to act. Prosecutions will force change. That’s why we are continuing and will continue with our campaign

Our longer analysis is here.

More Victorian quarantine mess. The government puts people at risk. Where is WorkSafe?

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If you’ve been following the Victorian Hotel quarantine ‘mess’, you’ll be aware that we started our adverts on top rating Victorian radio station 3AW on 21 April. Those adverts finish this coming week. They simply call for WorkSafe Victoria to do its job and prosecute!

Here’s the advert:

Play sound file

First. Thanks to everyone who’s been contributing to keep our campaign going. Every $ counts.

What we couldn’t predict when we started the adverts is the explosion of more ‘scandals’ about the continuing failures of the Victorian program. Media across the board have been reporting gob-smacking stories. Here’s just a taste of what’s been revealed in the last two weeks:

  • Needle sharing: Quarantine residents had to undertake blood tests. Unknown to them, the administrative procedures were so bad that needles were shared between residents. The serious infection risk is scary. The report comes from Safe Care Victoria, a Victorian government body.
  • Head Quarantine Control Executive breached his own procedures. The Australian exposed ‘hidden’ documents where infection control breaches have/are occurring in the current Victorian program. This includes the head of Infection control refusing to comply with his own orders when visiting hotels. He’s been ‘stood down’ with the government saying the breaches were ‘only minor.’ Here’s the ABC report on the breaches.
  • Long list of breaches. Both The Australian and The Age reveal leaked documents that reported ‘months of bungles and mismanagement’ in the quarantine system detailing ‘sloppy practices, untrained staff and poor hygiene.’

The Victorian government is now into its fourth attempt to run hotel quarantine. The first and second attempts led to 801 deaths. The third attempt led to an outbreak and lockdown. This fourth attempt is (again) proving to be riddled with incompetence at every level.

The point that we make and the reason for our campaign is that WorkSafe Victoria is the only authority with the power to do something NOW. It has almost unrestrained investigative power and ability to prosecute quickly.

Prosecution is essential because it’s the only thing that will force change to the management of the quarantine health system. This is a government and health system in crisis and WorkSafe can do something about it.

While WorkSafe sits back watching the unfolding management mess, all Victorians and Australians remain at high risk due to the Victorian government’s failure.

We’re working on more plans with our campaign. Campaign details are here.

Covid and the oppression of government regulation and regulators

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As we look to 2021 to be a better year than 2020, perhaps one of the shocks of Covid-19 has been how quickly our freedoms and liberty have been crushed under the weight of health dictates. It’s been done for our own good—that is, to keep us all safe from a silent, unseen enemy killer.

With luck, we will emerge from the Covid crisis this year with freedoms being returned. One fear, however, is that once governments, whether of left or right persuasion, taste the seductive power of authoritarianism, they become addictively hooked. There’s nothing some bureaucrats love more than the scent of their own power first thing in the morning.

That’s why at Self-Employed Australia we were pleased to receive an invitation from the office of Prime Minister and Cabinet to make comment on a regulation review it is undertaking. The review is looking at the expectations of regulators, their reporting and so on. In other words, the Prime Minister is reviewing how regulators should be held accountable. That’s a positive thing.

In our January submission to PM&C we’ve said that instructions to regulators from Parliament should be clear and transparent. We’ve said:

Our recommendation to the PM&C review is to keep firmly in mind that the community needs clear “road signs” in all regulatory matters. There should be a simple question asked of all regulations, namely:

  • Does the regulation provide clear and practical sign posts that can be understood by the community and the regulator in their day-to-day application?

That is, regulators should not be in a position where they can apply their own view of unclear laws to the extent that the regulator effectively become a law-maker ‘on the run’.

We cite the example of the Australian Taxation Office, which all too often is in a position where it effectively ‘creates’ law because unclear legislation enables them to do so. We’ve promoted our ATO reform program as a pathway to fixing the this problem. Here’s our explanatory video.

As Covid recedes (we hope), the balance between health authoritarianism and democracy should be a topic for longer term review. That is, in times of health crisis, are and should health bureaucrats be held accountable under rule-of-law principles?

One example of where bad law gets it totally wrong is in California and its making of self-employment illegal. Go figure? We’ve covered this before. There’s a new YouTube video about this Californian ‘AB5-kill self-employed’ law that explains this. It has good lessons for Australia … of what NOT to do….

800 deaths – The facts are clear. The Vic government must be prosecuted

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It would be dangerous to forget or ignore that 800 people died due to the Victorian government’s hotel quarantine disaster. We cannot simply ‘move on’ and pretend that 800 people did not die. That’s dangerous. That’s unsafe.

That’s why today we’re launching the next phase of our campaign to push for the prosecution of the Victorian government under work safety laws.

We write to WorkSafe
Here’s our letter, sent today, to the Victorian WorkSafe Authority, the prosecuting body. We provide them evidence that hotel quarantine plans should have been in place when they were not.

Hong Kong had clear plans that could have been used.

We remind WorkSafe of evidence from one officer who said

“Each outbreak was treated like a secret and nothing seemed to change…”

And a doctor who warned of bad procedures saying

“This is placing individuals at risk”

The pandemic was NOT unprecedented
In separate facts we explain why the Covid pandemic was not unprecedented and was fully expected and planned for, BUT the Victorian government forgot(?) to do a hotel quarantine plan!

And here we explain how the work safety laws apply.

Into and during 2021
This next phase of our campaign will continue through all of 2021. This is just the start. We have a research and legal team. We are preparing more evidence of why prosecution must occur. We will make this public and deliver it to WorkSafe.

Join/support our campaign. You can contribute $s here if you can.

Register your details here for information and updates.

Bad things happen if good people do nothing!

800 Deaths – Social media campaign to prosecute Victorian Government

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Today (18 December) we launch our social media campaign to ‘encourage’ WorkSafe Victoria to prosecute the Victorian government over the hotel quarantine disaster. Prosecution must occur.

800 deaths must not be ignored or forgotten.

No one must be above the law.

Here’s our ad. Click on the image for the YouTube video (43 secs):

Get the word out. Spread the message.

Share this ad. Share the link.

Support our social media advertising campaign. Contribute $s here to our campaign.

Just $10 will enable around another 50 people to hear/see the message.

Stay up to date with the campaign. Register your details here for information and updates.

Victoria Covid-19 – Blaming the self-employed and anyone else in sight

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Having lived in Melbourne all my life, I’m ‘picking up’ that this Melbourne Covid-19 deep lockdown has induced fear. Fear is in the Melbourne air.

Yes, it’s fear of the virus. But it’s also fear of continuing incompetence by the Dan Andrews government. The incompetence has led to the Stage 4 lockdown. This is not a party political comment. Labor governments in Western Australia and Queensland have so far successfully and impressively contained the spread of Covid-19.

Instead, there’s something uniquely ugly about the Dan Andrews-led government we’ve seen to date.

  • It has the stench of double standards. One rule for some people. Another rule for others. “You can’t do x. BUT it’s okay if some do!!” This has resulted in confusion about what people can and cannot do. Perhaps the Stage 4 lockdown will be consistent?
  • Gross administrative incompetence.
    • The blame for the ‘sex in quarantine hotels’ scandal lies squarely at the government’s feet. Premier Andrews refused Australian Defence Force personnel oversight. Every other state welcomed the ADF. The virus surged out of the hotels.
    • Management of Covid-19 testing, reporting and tracing is compromised. There appears to be a confused bureaucracy. Just one example from last week. A business shut down due to one staff member testing positive. Other staff were refused testing by the health department, yet the doctors wanted to test the staff. What the hell?!
  • Blame everyone but yourself. ‘It’s not me’ Premier Andrews has constantly stated in press conferences reported by media. He’s blamed the federal government for aged care problems, families for whatever (?), workers for going to work, the private sector and young people amongst many others.

We feel compelled to jump into this ‘blame others’ game when the Premier directs blame towards self-employed people. Last week Premier Andrews again blamed what he called “the structural weakness in our economy … insecure work”. This included contractors (the self-employed). We reject that. The Premier’s own report on ‘insecure work’ shows it is a positive contributor to society. Here’s our summary of the report.

This is part of the Premier’s declared war on the self-employed we reported in mid-June. The Premier has an agenda to make self-employment illegal, to wreck the lives of self-employed people. This reflects the authoritarian approach under Dan Andrews. It’s ugly and induces well-founded fear in Melbourne/Victoria.

Is there now a change in attitude? Perhaps. In press conferences over the last two days, Premier Andrews has been more inclusive. He’s thanked the PM for assistance, including ADF help. We haven’t noticed as many ‘blame others’ statements. If that marks a change in attitude, we can only welcome it.