Destroying self-employed rights – Part 2
The plan to outlaw self-employment and gig work - being your own boss is to be declared illegal!
Today I want to give you a fuller perspective on the so-called ‘Loophole’ industrial relations Bill currently before parliament. I’ve provided you two Substack posts so far - ‘initial post (2 Oct 2023) and next post (6 Oct 2023).
First, let me give you a quite broad perspective. We seem to be witnessing a ‘revolutionary’ agenda with the Albanese Labor government. There’s a pattern.
The Voice Referendum was/is (and let’s call a spade a shovel!) an agenda to make a ‘revolutionary’ change to the Australian Constitution, the implications of which were/are unknown and hotly disputed.
Earlier this year, Labor Treasurer Jim Chalmers published a long article committing to a ‘revolution’ of Australian capitalism without being specific about what that meant. But specifics are emerging. Here, arguably, are some examples.
The Reserve Bank of Australia is being totally reconstituted in its structure and objectives. That is, the processes and criteria upon which Australia’s interest rates are to be determined is being revolutionised. The Productivity Commission (the government’s primary economic think-tank) is likewise undergoing huge changes in structure and objectives. Expect its analysis and advice to government to take on a very different colour from the past.
Quite obviously the entire structure and operation of power generation is being turned upside down. It’s a ‘climate’ revolution, but one dependent on a capitalist revolution to the financing of power generation and distribution.
Perhaps further ‘revolutionary’ elements will emerge under the broad theme of Labor’s capitalist reform agenda. That’s not unusual, as change should be expected from any new government. But this Labor government is no Hawke/Keating Labor government. Their changes were very free-market orientated. The Albanese government’s agenda is proving to be strikingly different.
Perhaps I’ve been overly influenced by my attendance at Marxism Conference 2023 for three days during Easter. The core theme at the conference was the evil of capitalism and that capitalism has to be destroyed. When I wandered amongst my 1,300 Marxist friends, I repeatedly asked the question, what does a post-capitalist society look like? I consistently received one answer, ‘we’ll know when we get there’!
When I look at elements of the Albanese Labor government’s domestic capitalist revolution, I keep sensing that reply. What will Australian society look like after this Labor revolution? The answer seems to be: ‘we’ll know when we get there’!
But not everything is unknown or unclear. My deep-dive analysis of the Loophole Bill reveals a perfectly clear outcome.
The Loophole Bill is a revolutionary assault against the base root of how the Australian economy operates. That is, whether we as individuals are allowed to operate our own business, to be a business of one, the ultimate small/micro business, where we earn our income through the commercial contract. That is, the Loophole Bill is intended to destroy Australia’s self-employed small businesses.
This directly impacts 1.4 million individual self-employed people who, according to the Australian Bureau of Statistics, are full-time self-employed. Plus, another 970,000 Australians who work through gig platforms to access ‘top-up’ income in addition to their normal income.
In my last Substack post, I explained how the Loophole Bill achieves its objective by overriding and neutering the High Court’s declaration on what constitutes self-employment. In this post, I explain how the Loophole Bill achieves its destructive outcome through additional clauses.
I’ve produced a long paper (5,000-plus words) that goes through the technical details of these additional clauses. (For reference, the clauses are 15H, 15L and 15P). I won’t overload you with the detail in this post, but if you’re keen, you can access the paper here. It’s been provided to independent Senators, MPs, and their policy advisers. But see how the following stacks up as a layperson’s summary.
The Bill does the following:
Step One: The Bill ‘invents’ a new term for the Fair Work Act: a ‘services contract’. This is a generic term used in the Bill for any contract that involves a service or work delivery.
Step Two: The Bill then declares that a ‘contract for services’ is a ‘services contract’. Remember, a ‘contract for services’ is the legal term used for the commercial contract that self-employed people use and which identifies people as being self-employed.
Step Three: The Bill applies this term—‘services contract’—throughout the Bill when individuals are doing work.
Bingo: Through a legal but critical play with words, the Bill redefines what a commercial contract is, declaring it to be a contract regulated by the Fair Work Act and thereby effectively turning the commercial contract into an employment contract. In doing this, self-employed people’s commercial contracts are now employment contracts, thus destroying self-employment.
Get It? Sneaky, hey, but very effective.
Step Four: The Bill declares that these ‘services contracts’ will be subject to new control orders imposed by the Fair Work Authority covering pay, holidays, engagement processes, ‘collective’ agreements, and so on. The result is that self-employed people are to be regulated as if they/we are employees.
I predicted this earlier this year. In July a 5-minute excerpt from a longer interview I did on online Spectator TV went somewhat viral. In the interview I said, “What they are doing is effectively saying if you are self-employed, you are not in the legitimate workforce, you are not an adult, you can’t control you own money … in other words, you are stupid”. The interview is here.
Now that we have the legislative wording from the Bill, we can see how the outlawing of self-employment is being legally constructed.
Step Five: The Bill doubles up on the legislative technique above by creating a brand new term—‘employee-like worker’—with a highly complex definition involving assessments of a (currently) self-employed person’s (alleged) non-bargaining power (?), level of remuneration, contract authority and other things yet to be decided.
What this is doing is the very thing the High Court says should not be done when (according to the High Court) assessing “relationships of such fundamental importance”. The employment relationship (and self-employed relationship) “…with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship.”
The Bill is applying social and psychological concepts to ‘find’ people it says are ‘employee-like’ even though they are self-employed.
Step Six: The Bill directly attacks the gig economy by defining digital platform work in a broad and unrestricted way. On this definition it’s hard to see any gig work not being pulled into the Fair Work Act. What this is doing is treating all gig work as employment. Currently, all gig work is self-employed work. It’s this area where the data shows that 970,000 Australians do gig work entirely part-time, at a time that they choose, and as top-up income.
End result
The effect of this is that any self-employed, independent contractor (as defined at common law, a contract for services) is declared to be under a services contract and hence within the ambit of the Fair Work Act and is employee-like under any one of the assessments—all of which are all highly subjective. Further, gig work is effectively destroyed because its essential commercial operation is turned into employment.
What I hope I’ve summarised here is the technical legal game the Albanese Labor government is engaged in with this Loophole Bill.
And have no doubt, this ‘game’ is a revolutionary one. It’s an upending of the very legal basis of commercial work.
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. It ‘says’ that Australians are incompetent halfwits who must be denied their right and capacity to be self-employed, to be their own boss.
But funny! These same people—you, I and everyone else who are so half-witted and incompetent that we cannot be allowed to earn our income using the commercial contract—nonetheless use the commercial contract every day.
When we shop, we use the commercial contract. Goodness, we halfwits are actually allowed to buy cars. We are even allowed to enter commercial contracts to buy a house and take out a mortgage contract to the value of hundreds of thousands of dollars. Strange that we are considered (presumably) intelligent enough to do all these things. But apparently, based on the Albanese government’s Loophole Bill, we are not intelligent or competent enough to do this to earn our incomes.