We informed you on 7 May that the Federal government’s anti-small business plan was progressing. It released a Consultation Paper on 13 April requiring submissions by 12 May. We’ve lodged our submission opposing the planned legislation. The submission is here.
Sorry, but the submission is long—yep, 11,000 words.
The reason for the length is that the government’s plan is presented as if it’s a ‘tweaking’ of law and of limited application. It’s not. It’s a massive assault against the very principles and practices of contract that determine your right to be your own boss, to be self-employed. This can only be understood by understanding the detail.
We’ll explain the detail in shorter ‘chunks’ through this and a series of future news alerts. If you have queries, please contact us.
Competition law ‘protects’ self-employed, small business people
Today we cover the grave threats posed to competition policy and law, the jurisdictional authority of the Australian Consumer and Competition Commission (ACCC), and the right of people in Australia to earn their income as a small business person.
Competition law regulates commercial contracts.
Employment law regulates employment contracts.
- The government’s plan is to allow employment regulation to regulate commercial contracts.
This is a massive step across a fundamental threshold.
The plan is to legislatively redefine commercial contracts to be employment contracts on the alleged grounds that some self-employed people are ‘employee-like’.
This defies the High Court’s declaration in February 2022 (Personnel Case) that:
- “The employment relationship with which the common law is concerned must be a legal It is not a social or psychological concept like friendship…”
In effect, the plan is to ‘invent’ a new legislative contract form that is outside common law to thwart common law contract.
This also breaches Australia’s International Labour Organisation obligations where the ILO declared in 2006 that:
- “National policy for protection of workers in an employment relationship should not interfere with true civil and commercial relationships…”
The provisions will immediately set up a clash between competition law and employment regulation. Specifically, the ACCC and the Fair Work Commission (FWC) will both be required to regulate commercial contracts that have been declared ‘employee-like’, but each with different and opposing public policy objectives. The ACCC to prevent collusion over pricing and ensure competition. The FWC to facilitate price collusion thereby creating the circumstances for anti-competitive behaviour.
This is being done under the pretext that some self-employed people need ‘protections’.
But protections are already in place:
- Sham contracting laws in Australia are possibly the strongest in the world.
- The Independent Contractors Act outlaws payment below similar pay to an employee.
- ‘Beefed up’ unfair contract laws begin in November 2023 and will be handled by the ACCC.
- Collective bargaining for the self-employed is already available through the ACCC.
- Improved, easier dispute resolution can be made available through small business ombudsmen, etc.
- New ‘pay on time’ laws are currently being considered.
We are now undertaking a major advocacy campaign directed at Federal MHRs and Senators. We’ll keep you informed.