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Dancing with Alice at the Mad Hatter’s tea party – Loophole Bill farce

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I’m in Parliament (Canberra) and have been studying the Albanese government’s amendments to the Loophole (IR) Bill. ‘Weird’ is the best description. Try this.

The amendment relating to ‘employee-like’ workers says:

an “…order must not include terms about any of the following matters…” then lists the excluded matters.

But one paragraph later the amendment then says:

“Despite the subsection (above) a term about a matter mentioned (above) may be included …if the FWC (Fair Work Commission) is satisfied that the inclusion of the term (matter) is appropriate…”

That is, the amendment says that something is ‘out’ but is also ‘in’. What?

It reminds me of a quotation from Alice in Wonderland:

“Why, sometimes I’ve believed as many as six impossible things before breakfast!”

But if we can leave Alice alone for a little while, independent Senator David Pocock asked me to respond to two questions following my appearance before the Senate Committee on 10 November. YouTube link (19 minutes)

Senator Pocock asked:

1. You warn that this Bill will damage competition and result in a concentration of power in the hands of big business. Can you explain your concern for the fate of small business and competition in Australia in relation to this Bill?

We’ve replied in detail, but here are some points we made.

  • Tradespeople in the housing sector, in particular, will progressively lose their independence and be forced to work through large construction firms under similar arrangements to those operating in the commercial construction space. Housing construction will, over time, become concentrated in the hands of small numbers of big business builders.
  • The cash economy will expand. People denied access to gig-type work will turn to the shadow economy and under-the-table payments. (Note: Because gig work is all on-line transaction managed, payments are transparent and traceable for tax and other regulatory purposes.)
  • Big business will have an expanded control of the Australian economy. The suppression of small business activity, and in many cases the elimination of small business, will favour big business. The Bill will create a competition vacuum in the economy into which big business will happily move.

2. Does this Bill impose any risks on the viability and autonomy of relatively well paid independent contractors?

Our full answer to this question is:

Yes. By design, the Bill re-defines every self-employed person as an employee, thus legislatively removing their right to be a self-employed, independent contractor, their ‘own-boss’. The Bill is limitless in its reach and unrestrained by income level or any other factor. The Bill’s operational mechanisms have the capacity to directly attack the viability and autonomy of any independent contractor, no matter what their pay or income level.

The full answer to the first question is here and includes detailed references to the relevant sections of the Bill. It’s 5,000 words and (frankly) gets pretty dull to read.

If you want a more lively read, I’ve put together a Substack post (eight-minute read) that might be more engaging.

So off now to read more about Alice in the Wonderland of the Loophole Bill.

Thank goodness for the independents! Loophole Bill is a huge PILL

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Loophole-BillThere’s no doubt that the Senate independents have brought common sense to the Albanese government’s Loophole (industrial relations) Bill. And it’s a great victory for common sense that the firm stand taken by the independents has forced the government to start making amendments to the Bill.

  • First, the independent Senators refused to pass the entire Bill given that it is one huge pill too enormous and complex to swallow!
  • Second, the independent Senators carved out four vital work-safety-related items from the Loophole Pill/Bill and passed these (in the Senate) but the government voted against this and insisted the entire Pill/Bill should be passed/swallowed in its entirety.
  • Third, the government has carved out three amendments to bits of the Pill/Bill, presenting these as a great victory for them—as if they are masters of negotiation!

We don’t yet know the details of the government’s three amendments, but from the government’s media output they relate to changes to:

  • ‘Service contractors’ under labour hire;
  • Some aspects of the casuals definitions; and
  • Some aspects of the gig provisions.

We see these as minor changes given the massive size, complexity and far-reaching implications of the Loophole Bill. And the government seems to be desperate to get some industry associations and businesses to agree to some aspects of the Bill as part of a political game to pass the entire Pill/Bill.

But the truth is that the government has started making changes (very minor on our assessment) only because the independent Senators have said ‘NO, this Bill must be studied and looked at in its detail’. (And the Lib/Nats have supported this.)

Sometimes our parliamentary democracy actually does what it’s supposed to do—that is, make for better government. There are huge parts of this Bill that are super bad and should not be passed.

We say that the following sections of the Bill should not be passed—namely, the sections that:

  • Outlaw the bulk of self-employment;
  • Outlaw digital (gig) platform operations in Australia and therefore deny self-employed people the right to earn their income through digital (gig) platforms; and
  • Destroy self-employed owner-drivers’ businesses.

One big reason for not passing the Bill/Pill is that it is designed to damage competition law in Australia. This would create opportunity for a further concentration of economic power by big business. This would hit small business people in the guts.

So far, every indication from the independents is that they are not going to be bullied and are looking at the Bill in its detail.

Loophole Bill – State of play

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Loophole-billThis is to provide you with an update on the state of play with the Albanese government’s Loophole (industrial relations) Bill.

Last week we provided you the link to my video evidence (on 10 November) before the Senate Committee looking at the Bill. It’s not quite riveting, Oscar-winning viewing, but the interchange between myself and ex-Transport Workers’ Union career official, now Senator, Glenn Sterle could have put us both in the running for an Oscar nomination perhaps? Um!

But back to reality! To summarise:

  • The day before I gave evidence, independent Senators Jacqui Lambie and David Pocock moved motions in the Senate (on 9 November) to extract the OHS items from the massive Bill. These covered redundancy issues, anti-discrimination, asbestos safety and first responders coverage. (We support these and have said so.) The amendments were supported by the Libs/Nats and other independent Senators and passed.
  • Last week (13 November) those amendments went to the House of Representatives with the government voting against them. That is, the Albanese government blocked the implementation of these vital OHS protections. The outcome is a stalemate at this stage. The government insists on passing the entire Bill as a block and has been accused of using the OHS issues to leverage the passing of the government’s aggressive industrial relations agenda. This includes the self-employed, small business destruction parts that we strongly oppose.
  • Parliament isn’t sitting this week but returns the week after (from 27 November) for two weeks before Christmas. I’ll be back in Canberra ‘walking the halls’, talking with parliamentarians and their advisory staff.
  • The Senate Committee has finished its hearings and will now prepare its report to be presented on 1 February 2024. Normally the government controls the numbers on committees and a majority report favouring the Bill could be expected, with a minority report making criticism. But that’s speculation on our part.
  • Parliament resumes on 6 February with five sitting weeks from then until May. It’s impossible to tell what will happen, but if the stalemate continues (that is, the independent Senators wanting the amendments and the government refusing to pass them) the Bill could drag on well into next year. Again, that’s speculation.

However, there’s a lot of work for us to do. Following my Senate Committee appearance, we’ve received a request from the Committee secretariat asking for responses to follow-up questions from Senator Pocock. These are:

  1. You warn that this Bill will damage competition and result in a concentration of power in the hands of big business. Can you explain your concern for the fate of small business and competition in Australia in relation to this Bill?
  2. Does this Bill impose any risks on the viability and autonomy of relatively well-paid independent contractors?

The reply is due by 27 November. What’s great is that what we are saying is being taken seriously. But we need to demonstrate and seek to prove our case. And isn’t that exactly what a parliamentary democracy is supposed to be about?

We’ll keep you informed.

You don’t save something by destroying it!

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Senate-committeeOn Friday last (10 November) I appeared before the Senate Committee looking at the Loophole Bill.

Earlier in the day the Transport Workers Union had organised gig workers and others to appear before the Committee to describe how difficult their jobs are. We totally agree that all workers need protections. But gig workers are self-employed people, and they are not ‘protected’ if their right to be self-employed, to be their own boss, is destroyed.

This is the point I made in my presentation to the Senate Committee on Friday. (19 minutes)

Ken-Phillips

The government might have a declared intent to ‘protect’ gig workers and self-employed owner-drivers, but its ‘solution’ is all wrong. It wants to ‘protect’ us by denying us the right to be self-employed—to be an owner-driver or to be a self-employed person working through a gig platform.

There are better and more effective ways to ‘protect’ us self-employed people and we’re campaigning for this. These include:

  • Making government departments subject to unfair contract laws.
  • Having security of payment laws, particularly for construction and housing tradies.
  • Prompt pay on time laws.
  • And more.

These are real solutions that make common sense.

Update from Parliament: Loophole (IR) Bill

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LoopholeYesterday I was in Parliament House, Canberra, attending a workshop/discussion organised by Senator David Pocock on the Loophole Bill.

Here’s a quick update on the progress of the Bill (6 minutes).

 

loophole-youtube

 

Trashing casuals’ incomes – The Loophole Bill

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casualsLast week we explained how the Albanese government’s Loophole Bill will trash the incomes of casuals. That’s a pretty big claim on our part, particularly when we calculate the actual amounts that casuals can/will lose. That is, that casuals on:

  • minimum pay will lose up to $3,062 a year;
  • average pay will lose up to $5,354 a year.

But we don’t make such claims without proper analysis and facts.

In my Substack post on this we provide the analysis (8-minute read). And we include the full details of the wording of the relevant section in the Loophole Bill in our briefing paper to the Senate independents. This shows that the Bill effectively outlaws casual employment. This is how so many people (2.7 million of them) will have their incomes trashed.

You’d think that this is a very strange thing for a Labor government to do. Labor always says that it looks after low-income people, but this Bill clearly does the reverse. Why would they do this? Well, that’s for them to explain.

But Australian business columnist Robert Gottliebsen (23 October) has commented that the Loophole Bill:

“…is really a multitude of different actions, so people keep discovering new horrors as they study the pages, particularly the nasties hidden in the 500-page explanatory memorandum.”

Robert explains how the Bill attacks casuals’ incomes:

“Step one is to virtually abolish casual work by making the definition so complex that no one can risk employing a casual because the fines for paying people extra via the casual employment classification can be up to $93,000. Accordingly the casual labour “loophole” is closed.”

“Most existing casuals will need to transfer to full-time employment, or, more likely, part-time employee status. That means 2.7 million will receive a lower income.”

He says,

“There will be a riot when 2.7 million casuals discover they are a “loophole” and must have their cash pay cut.”

The issue is so huge Robert believes that if the Bill passes the Senate,

“…Peter Dutton is highly likely to become the next prime minister.”

After the massive rejection of Albanese and Labor’s attempt at the Voice, put this Loophole Bill on top—and anything could happen!!

Independent Senators – Your small business future in their hands

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independent-senatorsHave no doubt that the future of your right to be your own boss, to be a small business person, is in the hands of the seven independent Senators in parliament.

On Monday and Tuesday this week I ‘walked the corridors’ of Parliament House, Canberra, meeting with Senator’s advisors and others on the government’s 284-page, highly complex Loophole (Industrial Relations) Bill. I’ll be returning to Canberra several times before Christmas.

We’ve provided you an overview of the Bill and a detailed analysis of how the Bill trashes contract law as defined by the High Court. We’ll be supplying more analysis progressively. But be very clear on the central thrust of this Albanese government Bill.

This is the greatest attack against Australian small business people ever seen. More details below.

What should be happening are proper protections for small business people. One of these is the unfair contract laws. Seriously stronger unfair contract law come into effect on 9 November and, across the board, companies are upgrading their contracts. But government departments are not subject to these laws. That is, government departments can have unfair contracts with small business people and get away with it.

On Monday morning (16 October), independents Senator David Pocock, Senator Jacqui Lambie and MP Allegra Spender co-sponsored a small business breakfast in Parliament. The large room was packed. I had a chance to push this issue.

I put it to the Senators that this must be fixed. A one-paragraph amendment to competition law would stop this double-standards shocker.

Here I am putting this proposition. Senator David Pocock is behind me on the left of the picture.

small-business

But back to the Bill. The consequence of this Bill is that:

  • 2 million self-employed people will be declared to be employees. This will kill incomes.
  • 970,000 people who use gig work for top-up income will have their incomes trashed.
  • 8 million casuals will be forced to be full/part time employees, losing 6 per cent of their income.

For just the casual workers, people on:

  • minimum pay will lose up to $3,062 a year;
  • average pay will lose up to $5,354 a year.

That is, the Albanese government is engaged in a massive attack against people’s incomes.

This is no exaggeration. These conclusions are based on hard analysis of the words in the legislation with clear documentation on what this means. But be alert. The Albanese government is conducting a scandalous misinformation and disinformation campaign to push this Bill through.

We have more detailed explanation papers that we’ll release shortly. You can judge for yourself. We’ve already supplied these to the independent Senators and MPs and they are listening.

What the Loophole (IR) Bill means for you – some detail

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loopholeIn our news alert to you last week we gave you a broad overview of the government’s IR ‘reform’ Bill, the (Closing Loopholes) Bill 2023. We said that we’d progressively provide you our detailed analysis and this is the first instalment.

This first analysis explains how the Bill aims to override and neuter the Australian High Court’s determination of who/what is an independent contractor. This is a pretty serious move. This is NOT the addressing of some ‘loophole’ in the existing Fair Work Act, an Act created by the Rudd/Gillard Labor governments in 2009.

I’ve posted a Substack article analysing this part of the Bill. It’s around an 8-minute read. We hope this will give you some clarity. It’s free to access.

First step understanding—summary

But just to understand how serious this is, at its core, the Bill seeks to destroy the very legal basis of commercial and contract law in Australia. It’s staggering, but this is what the Bill seeks to do.

The most significant proof supporting this statement is that the Bill itself states its intent to repudiate, neuter and overturn the declaration made by the High Court in February 2022 on what constitutes commercial and employment contracts. (I show the clause in the Substack post.) The High Court must be ignored, according to this Bill.

The Bill is based on an underlying position that no individual Australian has the capacity, maturity, intelligence or wit to earn their income through the commercial contract. In effect, its ‘says’ that Australians are incompetent halfwits who must be denied their right and capacity to be self-employed, to be their own boss.

It is a Bill that denies the spirit of aspiration, ambition and ‘get up and go’ that so defines much of what it means to be human. As self-employed people we probably don’t understand the extent to which our very existence affronts the existing establishment status quo. This Bill is an attempt to squash us. This is not an exaggeration, but a statement of fact based on the wording of the Bill.

The 284 pages of the Bill contain many sub-agendas scattered throughout, but all captured within the central theme stated above. It’s a complex read, but to analyse the Bill, we had to split it into its ‘bits’ by colour-coding it. By doing that we were able to identify its sub-agendas and discover its overarching theme.

The parliamentary process

The Bill is being investigated by a Senate Committee with hearings currently underway. The Committee website is here and submissions here. Curiously, our 13,000-word submission has not yet appeared on the website.

Parliament sits from this Monday 16 October for 2 weeks. I’ll again be in parliament, ‘walking the halls’, talking with Senators and MPs and their advisers on the Bill. We’ll keep you updated.

A 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.